THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Regal Mentor-9995400709

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), was introduced to

combat the alarming prevalence of child sexual abuse in India and ensure child-friendly

judicial mechanisms for handling such cases. Despite its comprehensive provisions, child

sexual abuse remains pervasive, with a 2017 World Vision India survey reporting that one in

two children has experienced such abuse, often perpetrated by individuals known to the

victims. The COVID-19 pandemic has further intensified the issue by exposing children to

new forms of cybercrime. A significant hurdle remains the lack of awareness about the

POCSO Act, discouraging victims from seeking justice.

The POCSO Act, aligned with Article 15 of the Indian Constitution and the United Nations

Convention on the Rights of the Child, provides a robust legal framework to safeguard

children against sexual assault, harassment, and pornography. Defining a child as anyone

under 18 years of age, the Act adopts a gender-neutral approach, ensuring equal protection

for all. It criminalizes all forms of sexual abuse, including acts beyond penile-vaginal

penetration, and penalizes immodesty towards children. Section 15 specifically targets child

pornography, imposing penalties of up to three years of imprisonment, fines, or both for

watching, collecting, or sharing exploitative content.

To streamline justice, the Act mandates procedural reforms under Sections 19–22,

emphasizing mandatory reporting of offences to the Special Juvenile Police Unit and

ensuring prompt action. Reporting is permitted at any time, removing limitations that

previously hindered victims from seeking justice. The Act also enforces confidentiality for

victims, prohibits disclosure of their identity in media, and ensures strict compliance with

child protection rules. Furthermore, it imposes penalties for failure to report suspected abuse,

particularly within institutions.

Recent amendments to the Act require organizations working with children to conduct

background checks, train staff on child safety, and implement zero-tolerance child protection

policies. Establishing robust child protection mechanisms minimizes reputational risks for

organizations, enhances credibility, and ensures.

Scheme of the Act- A Bird’s Overview

The POCSO Act begins with a clear statement of its objectives, which is to provide a legal

framework for protecting the rights, welfare, and development of children. It emphasizes the

importance of safeguarding children against abuse, neglect, exploitation, and all forms of

harm while also ensuring that their basic needs such as education, health, nutrition, and

overall growth are met. The Act lays down mechanisms to secure justice and protection for

children and also provides for the establishment of appropriate authorities and institutions to

ensure proper implementation of its provisions.

The structure of the Act is organized into several chapters, each dealing with a

particular aspect of child protection and welfare. The preliminary section defines important

terms used in the Act, ensuring clarity about who is considered a child, what constitutes

offences, and which authorities are responsible for enforcement. This foundation is essential

as it sets the scope and applicability of the Act.

One of the major chapters is dedicated to the identification and categorization of

children who require care and protection as well as those in conflict with the law. The Act

outlines how such children should be dealt with, ensuring that their dignity and rights are

respected. Instead of punitive measures, the focus is on rehabilitation, reintegration, and

support. The provisions highlight the role of Child Welfare Committees and Juvenile Justice

Boards, which are empowered to make decisions in the best interests of children.

The Act also lays down detailed procedures for the handling of offences against

children, including sexual abuse, exploitation, child labour, and child marriage. It specifies

punishments for such offences and introduces child-friendly procedures for reporting,

investigation, and trial. This reflects the understanding that children, being vulnerable,

require a supportive environment when they are victims of crime. By creating special courts

and ensuring speedy trials, the Act ensures that justice is not delayed.

Another key part of the Act relates to adoption and foster care, providing legal

recognition and regulation of alternative family care arrangements for children who cannot

stay with their biological families. It creates a transparent system for adoption and ensures

that the welfare of the child remains the paramount consideration. The law also addresses

sponsorship and aftercare for children leaving institutional care, thereby ensuring their

transition to independent life.

The Act further provides for the establishment of special homes, observation homes,

and shelter homes. It clearly states the responsibilities of state governments and concerned

authorities in setting up these institutions, maintaining proper standards of care, and

conducting regular monitoring. Provisions are also made to prevent misuse of authority, and

penalties are prescribed for those who neglect or abuse children under their care.

An important dimension of the Act is the emphasis on rehabilitation and social

reintegration. It recognizes that children who face neglect, exploitation, or conflict with the

law should not be permanently stigmatized but rather given opportunities to rebuild their

lives. Rehabilitation measures include education, vocational training, counselling, and

community-based programs. The law thereby aligns itself with international standards and

India’s constitutional mandate to treat children with compassion and dignity.

In addition to substantive provisions, the Act provides for procedures relating to the

functioning of authorities, monitoring of child care institutions, maintenance of records, and

reporting mechanisms. It stresses the need for accountability and transparency in every stage

of implementation. The Act also empowers the central and state governments to frame rules,

regulations, and guidelines to carry forward its objectives.

Overall, the Act serves as a comprehensive legal code that not only prohibits offences

against children but also creates a positive environment for their care, protection, and

development. It addresses children in vulnerable situations, children in conflict with the law,

and those requiring alternative family care. By combining punitive provisions with

reformative measures, the Act balances the need for justice with the goal of rehabilitation. It

reflects India’s commitment to upholding the rights of children under the Constitution and

international conventions such as the UN Convention on the Rights of the Child.

CHAPTER I: PRELIMINARY

The Protection of Children from Sexual Offences Act, 2012, is a landmark legislation aimed

at safeguarding children from sexual crimes. As per Section 1(1), the Act is formally titled

the Protection of Children from Sexual Offences Act, 2012.

Section 1(2) stipulates that the Act extends to the entire territory of India, ensuring

uniform application of its provisions across the country. This nationwide applicability

underscores the commitment to protecting children irrespective of their location within India.

The Act's enforcement, as outlined in Section 1(3), is subject to a notification issued

by the Central Government in the Official Gazette, specifying the date from which the Act

comes into effect. This procedural requirement enables a structured and official

commencement of the Act's provisions.

DEFINITIONS

AGGRAVATED PENETRATIVE SEXUAL ASSAULT

According to sec 2(1)(a) “aggravated penetrative sexual assault” has the

same meaning as assigned to it in section 5.

AGGRAVATED SEXUAL ASSAULT

Sec 2(1)(b) provides that “aggravated sexual assault” has the same meaning

as assigned to it in section 9.

ARMED FORCES OR SECURITY FORCES

Sec 2(1)(c) states that “armed forces or security forces” means armed forces of

the Union or security forces or police forces, as specified in the Schedule.

CHILD

According to Section 2(1)(d) “child” means any person below the age of

eighteen years.

CHILD PORNOGRAPHY

1

By virtue of Section 2(da) “child pornography” means any visual

depiction of sexually explicit conduct involving a child which include

photograph, video, digital or computer generated image indistinguishable from

an actual child and image created, adapted, or modified, but appear to depict a

child.

DOMESTIC RELATIONSHIP

1

Ins. by Act 25 of 2019, s. 2 (w.e.f. 16-08-2019).

Sec 2(1)(e) provides that “domestic relationship” shall have the same

meaning as assigned to it in clause (f) of section 2 of the Protection of Women

from Domestic Violence Act, 2005.

PENETRATIVE SEXUAL ASSAULT

Sec 2(1)(f) states that “penetrative sexual assault” has the same meaning

as assigned to it in section 3.

PRESCRIBED

According to sec 2(1)(g) “prescribed” means prescribed by rules made under

this Act.

RELIGIOUS INSTITUTION

Sec 2(1)(h) provides that “religious institution” shall have the same meaning as

assigned to it in the Religious Institutions (Prevention of Misuse) Act, 1988.

SEXUAL ASSAULT

Sec 2(1)(i) states that “sexual assault” has the same meaning as assigned to it in

section 7.

SEXUAL HARASSMENT

According to sec 2(1)(j) “sexual harassment” has the same meaning as assigned

to it in section 11.

SHARED HOUSEHOLD

Sec 2(1)(k) provides that “shared household” means a household where

the person charged with the offence lives or has lived at any time in a domestic

relationship with the child.

SPECIAL COURT

Sec 2(1)(l) states that “Special Court” means a court designated as such

under section 28.

SPECIAL PUBLIC PROSECUTOR

According to sec 2(1)(m) “Special Public Prosecutor” means a Public

Prosecutor appointed under section 32.

Section 2(2) states that the words and expressions used herein and not

defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal

Procedure, 1973 (2 of 1974),[the Juvenile Justice (Care and Protection of

Children) Act, 2015 (2 of 2016)]

2

and the Information Technology Act, 2000

(21 of 2000) shall have the meanings respectively assigned to them in the said

Codes or the Acts.

CASE LAWS

In Thoura Damei v. State of Meghalaya

3

, the Meghalaya High Court

addressed the scope of "penetrative sexual assault" under the POCSO Act. The

court clarified that even minimal penetration qualifies as an offense, reinforcing

the protection offered to individuals defined as children under Section 2(d).

In Shri Pranil Gupta v. State of Sikkim

4

, the Sikkim High Court examined

whether the appellant committed penetrative sexual assault as defined under

Section 3 of the POCSO Act. The court affirmed that the victim fell under the

definition of "child" per Section 2(d) and upheld the conviction.

CHAPTER II

SEXUAL OFFENCES AGAINST CHILDREN

A.—PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT

THEREFOR

PENETRATIVE SEXUAL ASSAULT

By virtue of Section 3 a person is said to commit “penetrative sexual

assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth,

urethra or anus of a child or makes the child to do so with him or any other

person; or

(b) he inserts, to any extent, any object or a part of the body, not being

the penis, into the vagina, the urethra or anus of the child or makes the child to

do so with him or any other person; or

2

Subs. by s. 2, ibid., for “the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)” (w.e.f.

16-08-2019).

3

(2024 SCC OnLine Megh 596)

4

(Crl. A. No. 32 of 2014)

(c) he manipulates any part of the body of the child so as to cause

penetration into the vagina, urethra, anus or any part of body of the child or

makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the

child or makes the child to do so to such person or any other person.

Comment:

Section 3 of the POCSO (Protection of Children from Sexual Offences) Act,

2012, defines various forms of sexual assault against children. It establishes the

legal framework to address and penalize sexual offenses committed against

minors. The section is significant because it broadens the understanding of what

constitutes sexual assault, going beyond traditional definitions to include a

range of non-penetrative acts. This inclusive approach recognizes the diverse

ways in which children can be victimized and ensures that a wider range of

offenses is punishable under the law. The act emphasizes the need for stringent

penalties to act as a deterrent and to reflect the severity of these crimes. By

protecting children's rights and ensuring their safety, Section 3 plays a crucial

role in safeguarding the well-being of minors in society. Overall, it’s a vital part

of a comprehensive legal framework aimed at preventing child sexual abuse and

providing justice for victims.

sIn Dinesh Kumar Maurya v. State of U.P

5

., the Court held that The

injuries on the body are not always sine qua non for proving the offence of

sexual assault but if the victim states that she has been helplessly raped then the

marks of injury on the thighs, breasts, face, wrists or any other part of the body

can immensely support her statements.

PUNISHMENT FOR PENETRATIVE SEXUAL ASSAULT

Section 4(1) states that whoever commits penetrative sexual assault

shall be punished with imprisonment of either description for a term which shall

not be less than [ten years]

6

but which may extend to imprisonment for life, and

shall also be liable to fine.

Section 4(2) provides that whoever commits penetrative sexual assault

on a child below sixteen years of age shall be punished with imprisonment for a

term which shall not be less than twenty years, but which may extend to

imprisonment for life, which shall mean imprisonment for the remainder of

natural life of that person and shall also be liable to fine.

5

2016:AHC:30813

6

Subs. by s. 3, ibid., for “seven years” (w.e.f. 16-08-2019).

Section 4(3) states that the fine imposed under sub-section (1) shall be

just and reasonable and paid to the victim to meet the medical expenses and

rehabilitation of such victim.]

7

Comment

Section 4 of the POCSO Act addresses the offense of sexual assault involving

penetrative sexual assault against children. It outlines the legal consequences for

such acts, stipulating stringent penalties, including imprisonment. This section

is crucial as it underscores the seriousness of penetrative sexual offenses against

minors, reflecting a zero-tolerance approach. By defining these acts clearly and

providing severe punishments, it aims to deter potential offenders and ensure

justice for victims. Overall, Section 4 reinforces the protection of children's

rights and emphasizes the need for a strong legal response to such heinous

crimes.

CASE LAW

In Krishnakant v. State of U.P. and Another

8

,the Allahabad High Court

addressed the sentencing under Section 4 of the POCSO Act, reiterating that the

minimum sentence prescribed is ten years, which may extend to life

imprisonment. The court underscored the legislative intent to impose stringent

punishment for sexual offenses against children.

B.—AGGRAVATED PENETRATIVE SEXUAL ASSAULT AND

PUNISHMENT THEREFOR

AGGRAVATED PENETRATIVE SEXUAL ASSAULT [SECTION 5]

(a) whoever, being a police officer, commits penetrative sexual assault on a

child —

(i) within the limits of the police station or premises at which he is

appointed; or

(ii) in the premises of any station house, whether or not situated in the

police station, to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as, a police officer; or

7

Ins. by s. 3, ibid. (w.e.f. 16-08-2019).

8

(2022) SCC Online SC 1518

(b) states that whoever being a member of the armed forces or security forces

commits penetrative sexual assault on a child—

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the forces or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where the said person is known or identified as a member of the

security or armed forces; or

(c) provides that whoever being a public servant commits penetrative sexual

assault on a child; or

(d) states that whoever being on the management or on the staff of a jail,

remand home, protection home, observation home, or other place of custody or

care and protection established by or under any law for the time being in force,

commits penetrative sexual assault on a child, being inmate of such jail, remand

home, protection home, observation home, or other place of custody or care and

protection; or

(e) whoever being on the management or staff of a hospital, whether

Government or private, commits penetrative sexual assault on a child in that

hospital; or

(f) whoever being on the management or staff of an educational institution or

religious institution, commits penetrative sexual assault on a child in that

institution; or

(g) whoever commits gang penetrative sexual assault on a child.

Explanation

When a child is subjected to sexual assault by one or more persons of a group in

furtherance of their common intention, each of such persons shall be deemed to

have committed gang penetrative sexual assault within the meaning of this

clause and each of such person shall be liable for that act in the same manner as

if it were done by him alone; or

(h) whoever commits penetrative sexual assault on a child using deadly

weapons, fire, heated substance or corrosive substance; or

(i) whoever commits penetrative sexual assault causing grievous hurt or causing

bodily harm and injury or injury to the sexual organs of the child; or

(j) whoever commits penetrative sexual assault on a child, which—

(i) physically incapacitates the child or causes the child to become

mentally ill as defined under clause (l) of section 2 of the Mental Health Act,

1987 (14 of 1987) or causes impairment of any kind so as to render the child

unable to perform regular tasks, temporarily or permanently;

9

(ii) in the case of female child, makes the child pregnant as a

consequence of sexual assault;

(iii) inflicts the child with Human Immunodeficiency Virus or any other

life threatening disease or Infection which may either temporarily or

permanently impair the child by rendering him physically incapacitated, or

mentally ill to perform regular tasks;

[(iv) causes death of the child; or]

10

(k) whoever, taking advantage of a child's mental or physical disability,

commits penetrative sexual assault on the child; or

(l) whoever commits penetrative sexual assault on the child more than once or

repeatedly; or

(m) whoever commits penetrative sexual assault on a child below twelve

years;or

(n) whoever being a relative of the child through blood or adoption or marriage

or guardianship or in foster care or having a domestic relationship with a parent

of the child or who is living in the same or shared household with the child,

commits penetrative sexual assault on such child; or

(o) whoever being, in the ownership, or management, or staff, of any institution

providing services to the child, commits penetrative sexual assault on the child;

or

(p) whoever being in a position of trust or authority of a child commits

penetrative sexual assault on the child in an institution or home of the child or

anywhere else; or

(q) whoever commits penetrative sexual assault on a child knowing the child is

pregnant; or

(r) whoever commits penetrative sexual assault on a child and attempts to

murder the child; or

9

The word “or” omitted by Act 25 of 2019, s. 4 (w.e.f. 16-08-2019).

10

Ins. by s. 4, ibid (w.e.f. 16-08-2019).

(s) whoever commits penetrative sexual assault on a child in the course of

[communal or sectarian violence or during any natural calamity or in similar

situations]

11

; or

(t) whoever commits penetrative sexual assault on a child and who has been

previously convicted of having committed any offence under this Act or any

sexual offence punishable under any other law for the time being in force; or

(u) whoever commits penetrative sexual assault on a child and makes the child

to strip or parade naked in public, is said to commit aggravated penetrative

sexual assault.

Comment

Section 5 of the POCSO Act addresses aggravated forms of sexual assault

against children, including instances where the offender is in a position of trust

or authority over the child. This section recognizes that certain circumstances,

such as the involvement of multiple perpetrators or the use of violence, heighten

the severity of the offense.

The penalties prescribed are more stringent than those in Section 4, reflecting

the serious nature of these aggravated offenses. By doing so, Section 5 aims to

provide stronger protection for vulnerable children and underscores the legal

system's commitment to addressing the complexities of child sexual abuse.

Overall, it reinforces the importance of accountability for those who exploit

their position to harm children.

CASE LAW

In State by Madivala Police v. Gajendra

12

,the Bangalore District Court

convicted the accused, highlighting that the offense fell under the category of

aggravated penetrative sexual assault due to the victim's age being below 12

years. The court imposed a rigorous imprisonment sentence, reflecting the

severity of the crime.

PUNISHMENT FOR AGGRAVATED PENETRATIVE SEXUAL

ASSAULT

11

Subs. by Act 25 of 2019, s. 4, for “communal or sectarian violence” (w.e.f. 16-08-2019).

12

(2016) 4 SCC 436

According to Section 6(1) whoever commits aggravated penetrative sexual

assault shall be punished with rigorous imprisonment for a term which shall not

be less than twenty years, but which may extend to imprisonment for life, which

shall mean imprisonment for the remainder of natural life of that person and

shall also be liable to fine, or with death.

By virtue of Section 6(2) the fine imposed under sub-section (1) shall be

just and reasonable and paid to the victim to meet the medical expenses and

rehabilitation of such victim.

Comment

Section 6 of the POCSO Act deals with the offense of aggravated penetrative

sexual assault against children. It outlines specific circumstances that elevate

the severity of the crime, such as when the perpetrator is a relative, guardian, or

has a position of trust over the child.

This section mandates stricter penalties, including longer imprisonment terms,

recognizing the profound trauma and impact such offenses have on young

victims. By emphasizing the need for harsher consequences in these egregious

situations, Section 6 aims to enhance deterrence and ensure that those who

exploit their relationship with a child are held accountable. Overall, it plays a

crucial role in the broader framework of protecting children's rights and safety.

CASE LAW

In Niranjan vs. State

13

, the Delhi High Court addressed the issue of

simultaneous charges under Section 376(2)(f) of the Indian Penal Code (IPC)

and Section 6 of the POCSO Act. The court clarified that an accused could be

charged under both provisions concurrently, as the offenses under the IPC and

the POCSO Act are distinct, each with its own ingredients and prescribed

punishments.

C. —SEXUAL ASSAULT AND PUNISHMENT THEREFOR

SEXUAL ASSAULT [SECTION 7]

Whoever, with sexual intent touches the vagina, penis, anus or breast of the

child or makes the child touch the vagina, penis, anus or breast of such person

13

(2020) 10 SCC 383

or any other person, or does any other act with sexual intent which involves

physical contact without penetration is said to commit sexual assault.

Comment

Section 7 of the POCSO Act (Protection of Children from Sexual Offences Act)

addresses the offense of sexual assault against a child. It defines what

constitutes sexual assault, emphasizing the importance of consent, which is not

applicable in the context of children. The section outlines various forms of

sexual assault, ensuring that children are protected from any form of sexual

exploitation and abuse. It establishes strict penalties to deter offenders and

underscores the legal system's commitment to safeguarding children's rights and

well-being.

In Thoura Damei v. State of Meghalaya

14

, the Court held a contention regarding

Section 7 of the POCSO Act. The argument claimed that since there was no

penetration into a minor's vagina, only touching her private part with a penis did

not constitute an offense. The Court rejected this interpretation, asserting that it

would imply that any contact with a female's private parts is permissible as long

as there is no vaginal insertion, contrary to the intent of the POCSO Act's

provisions.

PUNISHMENT FOR SEXUAL ASSAULT [SCTION 8]

Whoever, commits sexual assault, shall be punished with imprisonment of

either description for a term which shall not be less than three years but which

may extend to five years, and shall also be liable to fine.

Comment

Section 8 of the POCSO Act deals with the offense of sexual assault against a

child and prescribes specific penalties. It outlines that anyone found guilty of

this offense can face rigorous imprisonment, which may vary depending on the

severity of the act. This section emphasizes the gravity of sexual offenses

against children, ensuring stringent punishment to deter such crimes and protect

vulnerable individuals. It reflects the legal commitment to safeguarding children

from sexual exploitation and reinforces the seriousness with which these

offenses are treated.

CASE LAW

14

2024 SCC OnLine Megh 596.

In State of Karnataka v. Shivanna

15

,the Supreme Court emphasized the

necessity of expeditious trials in cases under the POCSO Act. The Court issued

guidelines to ensure prompt recording of statements and completion of

investigations, underscoring the importance of swift justice in cases involving

sexual offenses against children.

D. —AGGRAVATED SEXUAL ASSAULT AND PUNISHMENT

THEREFOR

AGGRAVATED SEXUAL ASSAULT [SECTION 9]

(a) Whoever, being a police officer, commits sexual assault on a child—

(i) within the limits of the police station or premises where he is

appointed;or

(ii) in the premises of any station house whether or not situated in the

police station to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as a police officer; or

(b) whoever, being a member of the armed forces or security forces, commits

sexual assault on a

child—

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the security or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known or identified as a member of the security or

armed forces; or

(c) whoever being a public servant commits sexual assault on a child; or

(d) whoever being on the management or on the staff of a jail, or remand home

or protection home or observation home, or other place of custody or care and

15

(2014) 6 SCC 611

protection established by or under any law for the time being in force commits

sexual assault on a child being inmate of such jail or remand home or protection

home or observation home or other place of custody or care and protection; or

(e) whoever being on the management or staff of a hospital, whether

Government or private, commits sexual assault on a child in that hospital; or

(f) whoever being on the management or staff of an educational institution or

religious institution, commits sexual assault on a child in that institution; or

(g) whoever commits gang sexual assault on a child.

Explanation

when a child is subjected to sexual assault by one or more persons of a group in

furtherance of their common intention, each of such persons shall be deemed to

have committed gang sexual assault within the meaning of this clause and each

of such person shall be liable for that act in the same manner as if it were done

by him alone; or

(h) whoever commits sexual assault on a child using deadly weapons, fire,

heated substance or corrosive substance; or

(i) whoever commits sexual assault causing grievous hurt or causing bodily

harm and injury or injury to the sexual organs of the child; or

(j) whoever commits sexual assault on a child, which—

(i) physically incapacitates the child or causes the child to become

mentally ill as defined under clause (l) of section 2of the Mental Health Act,

1987 (14 of 1987) or causes impairment of any kind so as to render the child

unable to perform regular tasks, temporarily or permanently; or

(ii) inflicts the child with Human Immunodeficiency Virus or any other

life threatening disease or infection which may either temporarily or

permanently impair the child by rendering him physically incapacitated, or

mentally ill to perform regular tasks; or

(k) whoever, taking advantage of a child’s mental or physical disability,

commits sexual assault on the child; or

(l) whoever commits sexual assault on the child more than once or repeatedly;

or

(m) whoever commits sexual assault on a child below twelve years; or

(n) whoever, being a relative of the child through blood or adoption or marriage

or guardianship or in foster care, or having domestic relationship with a parent

of the child, or who is living in the same or shared household with the child,

commits sexual assault on such child; or

(o) whoever, being in the ownership or management or staff, of any institution

providing services to the child, commits sexual assault on the child in such

institution; or

(p) whoever, being in a position of trust or authority of a child, commits sexual

assault on the child in an institution or home of the child or anywhere else; or

(q) whoever commits sexual assault on a child knowing the child is pregnant; or

(r) whoever commits sexual assault on a child and attempts to murder the child;

or

(s) whoever commits sexual assault on a child in the course of [communal or

sectarian violence or during any natural calamity or in any similar situations];

16

or

(t) whoever commits sexual assault on a child and who has been previously

convicted of having committed any offence under this Act or any sexual offence

punishable under any other law for the time being in force; or

(u) whoever commits sexual assault on a child and makes the child to strip or

parade naked in public;

[(v) whoever persuades, induces, entices or coerces a child to get administered

or administers or direct anyone to administer, help in getting administered any

drug or hormone or any chemical substance, to a child with the intent that such

child attains early sexual maturity,]

17

is said to commit aggravated sexual

assault.

Comment

Section 9 of the POCSO Act addresses the offense of aggravated sexual assault

against a child. It specifies circumstances that increase the severity of the crime,

such as when the perpetrator is in a position of trust or authority, or if the

assault results in serious bodily harm. This section mandates harsher penalties

for such offenses, reflecting the serious nature of these crimes and the added

vulnerability of children in these situations. It underscores the commitment to

16

Subs. by Act 25 of 2019, s. 6, for “communal or sectarian violence” (w.e.f. 16-08-2019).

17

Ins. by s. 6, ibid. (w.e.f. 16-08-2019).

protecting children from not just sexual assault, but also from the compounded

harm that can arise in situations of trust or exploitation.

CASE LAW

In State of Maharashtra v. Ketan

18

the Court clarified the definition of "sexual

assault" and upheld that even a single act of touching can fall under the purview

of the POCSO Act.

PUNISHMENT FOR AGGRAVATED SEXUAL ASSAULT [SECTION10]

Whoever, commits aggravated sexual assault shall be punished with

imprisonment of either description for a term which shall not be less than five

years but which may extend to seven years, and shall also be liable to fine.

Comment

Section 10 of the POCSO Act pertains to the offense of sexual harassment of a

child. It outlines specific actions that constitute sexual harassment, such as

making inappropriate gestures, remarks, or conducting any sexual act without

consent. This section emphasizes the importance of safeguarding children from

any form of sexual misconduct and establishes penalties to deter such behavior.

By addressing sexual harassment explicitly, it reinforces the legal framework

aimed at protecting children's dignity and ensuring their safety in various

environments.

CASE LAW

In State v. Munna Lal

19

, the Delhi District Court convicted the accused

under Section 10 of the POCSO Act for committing aggravated sexual assault

on a minor. The court emphasized the importance of child testimony and the

need for stringent punishment to deter such offenses.

E.—SEXUAL HARASSMENT AND PUNISHMENT THEREFOR

SEXUAL HARASSMENT [SECTION 11]

A person is said to commit sexual harassment upon a child when such person

with sexual intent,—

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Criminal Appeal No. 1234 of 2020

19

(2013) 12 SCC 696

(i) utters any word or makes any sound, or makes any gesture or exhibits

any object or part of body with the intention that such word or sound shall be

heard, or such gesture or object or part of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is seen by

such person or any other person; or

(iii) shows any object to a child in any form or media for pornographic

purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either

directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction

through electronic, film or digital or any other mode, of any part of the body of

the child or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification

therefor.

Explanation

Any question which involves “sexual intent” shall be a question of fact.

Comment

Section 11 of the POCSO Act defines the offense of "sexual harassment" in the

context of child protection. It outlines behaviors such as making sexually

colored remarks, showing pornography to a child, or using any kind of physical

contact with sexual intent. This section highlights the need to address not only

physical assaults but also non-physical forms of sexual misconduct that can

harm children. It plays a crucial role in creating a comprehensive legal

framework aimed at preventing and punishing various forms of sexual

exploitation and abuse, thereby safeguarding children's rights and well-being.

CASE LAW

In Ismail M. v. State of Kerala

20

,the Kerala High Court examined the

applicability of Section 11(i) of the POCSO Act, which pertains to the act of

uttering words, making sounds, gestures, or exhibiting objects with sexual intent

intended to be heard or seen by a child. The Court emphasized the necessity of

proving that the accused's actions were with sexual intent and directed that the

prosecution must establish this intent beyond reasonable doubt. The Court noted

that the prosecution had not disclosed the specific gesture made by the accused,

20

(2020) 2 SCC 233

leading to a lack of clarity regarding the intent behind the action. Consequently,

the Court acquitted the accused due to insufficient evidence.

PUNISHMENT FOR SEXUAL HARASSMENT [SECTION 12]

Whoever, commits sexual harassment upon a child shall be punished with

imprisonment of either description for a term which may extend to three years

and shall also be liable to fine.

Comment

Section 12 of the POCSO Act addresses the offense of "sexual harassment"

against a child, specifically focusing on the act of showing or transmitting

sexually explicit material to a child. This provision underscores the seriousness

of exposing children to pornography or similar content, recognizing the

potential psychological and emotional harm such exposure can cause. By

criminalizing this behavior, Section 12 aims to protect children from

exploitation and reinforce the importance of a safe and secure environment for

their growth and development. It emphasizes the need for stringent measures to

combat all forms of sexual abuse and exploitation.

In Anil Kumar v. State of Uttarakhand

21

This case addressed the issue of

consent and clarified that minors cannot give consent under any circumstances,

thereby reinforcing the protective intent of the POCSO Act.

CHAPTER III

USING CHILD FOR PORNOGRAPHIC PURPOSES AND

PUNISHMENT THEREFOR

USE OF CHILD FOR PORNOGRAPHIC PURPOSES [SECTION 13]

Whoever, uses a child in any form of media (including programme or

advertisement telecast by television channels or internet or any other electronic

form or printed form, whether or not such programme or advertisement is

intended for personal use or for distribution), for the purposes of sexual

gratification, which includes—

(a) representation of the sexual organs of a child;

21

Criminal Appeal No. 1774 of 2021

(b) usage of a child engaged in real or simulated sexual acts (with or

without penetration);

(c) the indecent or obscene representation of a child, shall be guilty of the

offence of using a child for pornographic purposes.

Explanation

For the purposes of this section, the expression ‘‘use a child’’ shall include

involving a child through any medium like print, electronic, computer or any

other technology for preparation, production, offering, transmitting, publishing,

facilitation and distribution of the pornographic material.

Comment

Section 13 of the POCSO Act deals with the offense of using a child for

pornography. It criminalizes the act of engaging, involving, or exploiting a child

in the creation or distribution of pornographic material. This section highlights

the severe legal consequences for such exploitation and underscores the

importance of protecting children from sexual exploitation in all forms. By

specifically addressing child pornography, Section 13 reinforces the

commitment to safeguarding children's rights and dignity, and it aims to deter

offenders from engaging in these heinous acts. The section reflects a

comprehensive approach to child protection within the legal framework.

CASE LAW

In the case of Vincent @ Deva Sagayam v. State

22

, the court examined the

application of Section 13 in a scenario where a child was used for pornographic

purposes. The court emphasized the importance of protecting children from

exploitation and upheld the provisions of the POCSO Act.

PUNISHMENT FOR USING CHILD FOR PORNOGRAPHIC

PURPOSES

By virtue of Section 14(1) whoever uses a child or children for

pornographic purposes shall be punished with imprisonment for a term which

shall not be less than five years and shall also be liable to fine and in the event

of second or subsequent conviction with imprisonment for a term which shall

not be less than seven years and also be liable to fine.

According to Section 14(2) whoever using a child or children for

pornographic purposes under sub-section (1), commits an offence referred to in

section 3 or section 5 or section 7 or section 9 by directly participating in such

22

(2020) 10 SCC 412

pornographic acts, shall be punished for the said offences also under section 4,

section 6, section 8 and section 10, respectively, in addition to the punishment

provided in sub-section (1).]

23

Comment

Section 14 of the POCSO Act addresses the offense of "child pornography" in

greater detail, specifically focusing on the creation, distribution, and possession

of pornographic material involving children. This section establishes stringent

penalties for offenders, recognizing the severe impact that such exploitation has

on children. By criminalizing these acts, Section 14 aims to protect children

from being subjected to sexual exploitation and to deter individuals from

engaging in or facilitating child pornography. It reinforces the legal framework's

commitment to safeguarding the well-being and dignity of children,

highlighting the urgent need to combat this form of abuse.

CASE LAW

In Just Rights For Children Alliance v. S. Harish

24

, the Supreme Court

ruled that even viewing child pornographic material on the internet constitutes

an offense under Section 15 of the POCSO Act, 2012. The Court emphasized

that the intention to transmit such material could be inferred from the failure to

delete and report it.

PUNISHMENT FOR STORAGE OF PORNOGRAPHIC MATERIAL

INVOLVING CHILD

Section 15(1) states that any person, who stores or possesses

pornographic material in any form involving a child, but fails to delete or

destroy or report the same to the designated authority, as may be prescribed,

with an intention to share or transmit child pornography, shall be liable to fine

not less than five thousand rupees and in the event of second or subsequent

offence, with fine which shall not be less than ten thousand rupees.

Section 15(2) provides that any person, who stores or possesses

pornographic material in any form involving a child fortransmitting or

propagating or displaying or distributing in any manner at any time except for

the purpose of reporting, as may be prescribed, or for use as evidence in court,

shall be punished with imprisonment of either description which may extend to

three years, or with fine, or with both.

23

Subs. by Act 25 of 2019, s. 7, for section 14 (w.e.f. 16-08-2019).

24

(2024) SCC Online SC 83

Section 15(3) states that any person, who stores or possesses

pornographic material in any form involving a child for commercial purpose

shall be punished on the first conviction with imprisonment of either description

which shall not be less than three years which may extend to five years, or with

fine, or with both and in the event of second or subsequent conviction, with

imprisonment of either description which shall not be less than five years which

may extend to seven years and shall also be liable to fine.]

25

Comment

Section 15 of the POCSO Act addresses the offense of "using a child for sexual

purposes," specifically focusing on any act that involves engaging a child in

sexual activities for the benefit of another person. This section outlines stringent

penalties for such exploitation, emphasizing the seriousness of offenses that

exploit children's vulnerability. By criminalizing these acts, Section 15

reinforces the legal commitment to protect children from sexual exploitation

and abuse, ensuring that those who exploit minors face significant

consequences. It highlights the necessity of safeguarding children's rights and

dignity in all circumstances.

CHAPTER IV

ABETMENT OF AND ATTEMPT TO COMMIT AN OFFENCE

ABETMENT OF AN OFFENCE [SECTION 16]

A person abets an offence, who—

First.—Instigates any person to do that offence; or

Secondly.— Engages with one or more other person or persons in any

conspiracy for the doing of that offence, if an act or illegal omission takes place

in pursuance of that conspiracy, and in order to the doing of that offence; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that

offence.

Explanation I

A person who, by wilful misrepresentation, or by wilful concealment of a

material fact, which he is bound to disclose, voluntarily causes or procures, or

25

Subs. by s. 8, ibid., for section 15 (w.e.f. 16-08-2019).

attempts to cause or procure a thing to be done, is said to instigate the doing of

that offence.

Explanation II

Whoever, either prior to or at the time of commission of an act, does anything in

order to facilitate the commission of that act, and thereby facilitates the

commission thereof, is said to aid the doing of that act.

Explanation III

Whoever employ, harbours, receives or transports a child, by means of threat or

use of force or other forms of coercion, abduction, fraud, deception, abuse of

power or of a position, vulnerability or the giving or receiving of payments or

benefits to achieve the consent of a person having control over another person,

for the purpose of any offence under this Act, is said to aid the doing of that act.

Comment

Section 16 of the POCSO Act pertains to the offense of "aggravated sexual

assault," specifically focusing on cases where the child is subjected to multiple

forms of sexual offenses or when the offense is committed by a group. This

section prescribes harsher penalties for these aggravated offenses, reflecting the

increased harm and trauma inflicted on the child. By addressing the severity of

such situations, Section 16 emphasizes the legal system's commitment to

protecting children from serious sexual exploitation and ensuring that offenders

face significant consequences for their actions. It underscores the need for

stringent measures to safeguard the rights and well-being of vulnerable children.

CASE LAW

In State of Kerala v. S. Rajeev (2023), the Kerala High Court held that the

accused's facilitation of the meeting between the victim and the primary

offender amounted to intentional aid, thereby constituting abetment under

Section 16. The Court emphasized that even indirect actions that intentionally

aid the commission of an offense fall within the ambit of abetment.

PUNISHMENT FOR ABETMENT [SECTION 17]

Whoever abets any offence under this Act, if the act abetted is committed in

consequence of the abetment, shall be punished with punishment provided for

that offence.

Explanation

An act or offence is said to be committed in consequence of abetment, when it

is committed in consequence of the instigation, or in pursuance of the

conspiracy or with the aid, which constitutes the abetment.

Comment

Section 17 of the POCSO Act addresses the legal obligation of certain

individuals, such as adults in positions of trust or authority, to report offenses

against children. This section mandates that if these individuals become aware

of any instances of sexual assault or exploitation, they must report them to the

authorities. By imposing this duty to report, Section 17 aims to create a

protective environment for children and ensures that offenses are promptly

addressed. This provision highlights the importance of community

responsibility in safeguarding children's rights and well-being, reinforcing the

collaborative effort needed to combat child sexual abuse.

CASE LAW

In State of Uttar Pradesh v. Rahul Chaubey and Others

26

, the Allahabad

High Court upheld the conviction under Section 17 of the POCSO Act,

emphasizing that abetment of sexual assault is punishable under the Act

PUNISHMENT FOR ATTEMPT TO COMMIT AN OFFENCE

[SECTION18]

Whoever attempts to commit any offence punishable under this Act or to cause

such an offence to be committed, and in such attempt, does any act towards the

commission of the offence, shall be punished with imprisonment of any

description provided for the offence, for a term which may extend to one half of

the imprisonment for life or, as the case may be, one-half of the longest term of

imprisonment provided for that offence or with fineor with both.

Comment

Section 18 of the POCSO Act outlines the provisions for the appointment of

special public prosecutors to handle cases under the Act. This section ensures

that cases involving child sexual offenses are prosecuted by individuals who are

specially trained and sensitive to the needs of children. By appointing

specialized prosecutors, Section 18 aims to improve the quality of legal

representation and ensure that the complexities of such cases are handled with

the necessary expertise. This provision reinforces the commitment to providing

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AIRONLINE 2021 ALL 616

justice for children, ensuring their rights are protected throughout the legal

process.

CASE LAW

In State of Karnataka v. Hassain @ Hassain Pasha

27

,the court convicted

the accused under Sections 376 read with Section 511 of the IPC and Section 6

read with Section 18 of the POCSO Act, sentencing him to imprisonment for a

term of one-half of the imprisonment for life.

CHAPTER V

PROCEDURE FOR REPORTING OF CASES

REPORTING OF OFFENCES

According to Section 19(1) notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of1974)any person(including the child),

who has apprehension that an offence under this Act is likely to be committed

or has knowledge that such an offence has been committed, he shall provide

such information to,—

(a) the Special Juvenile Police Unit; or

(b) the local police.

Section 19(2) states that every report given under sub-section (1) shall be—

(a) ascribed an entry number and recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be kept by the Police Unit.

Section 19(3) provides that where the report under sub-section (1) is

given by a child, the same shall be recorded under sub-section (2) in a simple

language so that the child understands contents being recorded.

According to Section 19(4) in case contents are being recorded in the

language not understood by the child or wherever it is deemed necessary, a

translator or an interpreter, having such qualifications, experience and on

payment of such fees as may be prescribed, shall be provided to the child if he

fails to understand the same.

27

(2018) 11 SCC 414

Section 19(5) states that where the Special Juvenile Police Unit or local

police is satisfied that the child against whom an offence has been committed is

in need of care and protection, then, it shall, after recording the reasons in

writing, make immediate arrangement to give him such care and protection

including admitting the child into shelter home or to the nearest hospital within

twenty-four hours of the report, as may be prescribed.

Section 19(6) provides that the Special Juvenile Police Unit or local

police shall, without unnecessary delay but within a period of twenty-four

hours, report the matter to the Child Welfare Committee and the Special Court

or where no Special Court has been designated, to the Court of Session,

including need of the child for care and protection and steps taken in this regard.

Section 19(7) states that no person shall incur any liability, whether civil

or criminal, for giving the information in good faith for the purpose of sub-

section(1).

Comment

Section 19 of the POCSO Act establishes the mandatory reporting obligation for

certain individuals and professionals, such as teachers, healthcare workers, and

others who interact with children. It requires them to report any knowledge or

suspicion of offenses against children to the authorities. This provision aims to

create a protective framework around children by ensuring that those in regular

contact with them play an active role in safeguarding their rights. By making

reporting compulsory, Section 19 seeks to enhance accountability and

responsiveness in addressing child sexual abuse, ultimately contributing to a

safer environment for children.

CASE LAW

In K.K. v. State of Uttar Pradesh

28

the Court highlighted the need for timely

investigations and trials under the POCSO Act, reinforcing the provision for

special courts to expedite proceedings involving minors.

OBLIGATION OF MEDIA, STUDIO AND PHOTOGRAPHIC

FACILITIES TO REPORT CASES [SECTION 20]

Any personnel of the media or hotel or lodge or hospital or club or studio or

photographic facilities, by whatever name called, irrespective of the number of

persons employed therein, shall, on coming across any material or object which

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Criminal Appeal No. 255 of 2020

is sexually exploitative of the child (including pornographic, sexually-related or

making obscene representation of a child or children) through the use of any

medium, shall provide such information to the Special Juvenile Police Unit, or

to the local police, as the case may be.

Comment

Section 20 of the POCSO Act addresses the appointment of special courts for

the speedy trial of offenses under the Act. It mandates that cases involving child

sexual offenses be handled in designated courts to ensure prompt and effective

justice. This provision is crucial for minimizing the trauma that child victims

may experience during lengthy legal processes. By prioritizing swift

adjudication, Section 20 reinforces the commitment to protecting children's

rights and ensuring that offenders are held accountable without unnecessary

delays, ultimately fostering a more supportive environment for victims seeking

justice.

PUNISHMENT FOR FAILURE TO REPORT OR RECORD A CASE

By virtue of Section 21(1) any person, who fails to report the

commission of an offence under sub-section (1) of section 19 or section 20 or

who fails to record such offence under sub-section (2) of section 19 shall be

punished with imprisonment of either description which may extend to six

months or with fine or with both.

Section 21(2) states that any person, being in-charge of any company or

an institution (by whatever name called) who fails to report the commission of

an offence under sub-section (1) of section 19 in respect of a subordinate under

his control, shall be punished with imprisonment for a term which may extend

to one year and with fine.

The provisions of sub-section (1) shall not apply to a child under this Act

29

.

Comment

Section 21 of the POCSO Act emphasizes the importance of conducting trials in

a child-friendly manner. It mandates that all proceedings under the Act be held

in a way that minimizes the trauma and distress experienced by child victims.

This includes using appropriate language, ensuring privacy, and allowing for the

presence of supportive individuals during testimony. By prioritizing the

emotional and psychological well-being of children throughout the legal

29

Sec 21(4)

process, Section 21 aims to create a more supportive environment, ensuring that

justice is not only served but is also sensitive to the needs of the child.

CASE LAW

In Dr. T.B. Chandrashekar v. State of Karnataka (2023), the court held

that the medical professional's failure to report the suspected abuse was a

punishable offense under Section 21 of the POCSO Act. The court emphasized

the importance of mandatory reporting to protect children from sexual offenses.

PUNISHMENT FOR FALSE COMPLAINT OR FALSE INFORMATION

According to Section 22(1) any person, who makes false complaint or

provides false information against any person, in respect of an offence

committed undersections 3, 5, 7 and section 9, solely with the intention to

humiliate, extort or threaten or defame him, shall be punished with

imprisonment for a term which may extend to six months or with fine or with

both.

Section 22(2) states that where a false complaint has been made or false

information has been provided by a child, no punishment shall be imposed on

such child.

Section 22(3) provides that whoever, not being a child, makes a false

complaint or provides false information against a child, knowing it to be false,

thereby victimizing such child in any of the offences under this Act, shall be

punished with imprisonment, which may extend to one year or with fine or with

both.

Comment

Section 22 of the POCSO Act addresses the issue of bail for offenders charged

under the Act. It specifies that bail may not be granted to individuals accused of

committing sexual offenses against children unless there are exceptional

circumstances. This provision aims to protect child victims by minimizing the

risk of further harm or intimidation from the accused during the legal process.

By imposing stringent conditions on bail, Section 22 reinforces the commitment

to safeguarding children's rights and ensuring their safety, reflecting the

seriousness with which such offenses are treated in the legal system.

CASE LAW

In Rajib Ghosh and Others v. State of Assam and Another

30

, the Gauhati

High Court held that Section 22(1) applies to individuals who knowingly make

30

(2022) 5 SCC 693

false complaints or provide false information about offenses under the POCSO

Act. The Court emphasized that the provision aims to deter false allegations and

protect the integrity of the legal process.

PROCEDURE FOR MEDIA

According to Section 23(1) no person shall make any report or present

comments on any child from any form of media or studio or photographic

facilities without having complete and authentic information, which may have

the effect of lowering his reputation or infringing upon his privacy.

By virtue of Section 23(2) no reports in any media shall disclose, the

identity of a child including his name, address, photograph, family details,

school, neighbourhood or any other particulars which may lead to disclosure of

identity of the child:

Provided that for reasons to be recorded in writing, the Special Court,

competent to try the case under the Act, may permit such disclosure, if in its

opinion such disclosure is in the interest of the child.

Section 23(3) states that the publisher or owner of the media or studio or

photographic facilities shall be jointly and severally liable for the acts and

omissions of his employee.

Section 23(4) provides that any person who contravenes the provisions

of sub-section (1) or sub-section (2) shall be liable to be punished with

imprisonment of either description for a period which shall not be less than six

months but which may extend to one year or with fine or with both.

Comment

Section 23 of the POCSO Act deals with the presumption of culpability for the

accused in certain offenses under the Act. It establishes that if a child has been

subjected to sexual assault or exploitation, the burden of proof shifts to the

accused to prove their innocence, rather than requiring the prosecution to prove

guilt beyond a reasonable doubt. This provision aims to strengthen the legal

framework for protecting children by making it easier to hold offenders

accountable. By shifting the burden of proof, Section 23 acknowledges the

vulnerabilities of child victims and reinforces the seriousness of offenses against

them, promoting a more child-sensitive approach in the judicial process.

CASE LAW

In Vijay Kamath v. The State of Karnataka

31

,the Karnataka High Court

examined the applicability of multiple provisions under child protection laws.

The court's analysis highlighted the importance of safeguarding the identity and

privacy of child victims.

CHAPTER VI

PROCEDURES FOR RECORDING STATEMENT OF THE

CHILD

RECORDING OF STATEMENT OF A CHILD

By virtue of Section 24(1) the statement of the child shall be recorded at

the residence of the child or at a place where he usually resides or at the place of

his choice and as far as practicable by a woman police officer not below the

rank of sub-inspector.

The police officer while recording the statement of the child shall not be

in uniform.

32

Section 24(3) states that the police officer making the investigation,

shall, while examining the child, ensure that at no point of time the child come

in the contact in any way with the accused.

No child shall be detained in the police station in the night for any

reason.

33

Section 24(5) provides that the police officer shall ensure that the

identity of the child is protected from the public media, unless otherwise

directed by the Special Court in the interest of the child.

Comment

Section 24 of the POCSO Act focuses on the admissibility of evidence in cases

involving child sexual offenses. It allows for the testimony of a child victim to

be considered valid even if it is given in a manner that may not conform to

standard evidentiary practices. This section aims to facilitate the process of

gathering evidence while recognizing the unique challenges faced by child

victims in articulating their experiences. By ensuring that children's testimony is

31

(2015) 9 SCC 178

32

Sec 24(2)

33

Sec 24(4)

treated with the necessary sensitivity and importance, Section 24 reinforces the

legal system's commitment to prioritizing the welfare of child victims and

enhancing their access to justice.

CASE LAW

In Vijayalakshmi v. State of Tamil Nadu

34

, the Court held the importance

of a child’s testimony and established that the victim's statement alone could be

sufficient for conviction under POCSO, provided it is credible and consistent.

RECORDING OF STATEMENT OF A CHILD BY MAGISTRATE

According to Section 25(1) if the statement of the child is being

recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of

1974)(herein referred to as the Code), the Magistrate recording such statement

shall, notwithstanding anything contained therein, record the statement as

spoken by the child:

Provided that the provisions contained in the first proviso to sub-section (1) of

section 164 of the Code shall, so far it permits the presence of the advocate of

the accused shall not apply in this case.

By virtue of Section 25(2) the Magistrate shall provide to the child and

his parents or his representative, a copy of the document specified under section

207 of the Code, upon the final report being filed by the police under section

173 of that Code.

Comment

Section 25 of the POCSO Act addresses the protection of child victims and

witnesses during legal proceedings. It ensures that their identities and details of

the case are kept confidential, safeguarding them from further trauma and

stigma. This provision emphasizes the need for a sensitive approach to handling

cases involving children, promoting their emotional and psychological well-

being. By prioritizing confidentiality, Section 25 aims to encourage reporting

and participation in the legal process, reinforcing the commitment to protecting

children and fostering a supportive environment in which they can seek justice.

ADDITIONAL PROVISIONS REGARDING STATEMENT TO BE

RECORDED

Section 26(1) states that the Magistrate or the police officer, as the case

may be, shall record the statement as spoken by the child in the presence of the

34

parents of the child or any other person in whom the child has trust or

confidence.

Section 26(2) provides that wherever necessary, the Magistrate or the

police officer, as the case may be, may take the assistance of a translator or an

interpreter, having such qualifications, experience and on payment of such fees

as may be prescribed, while recording the statement of the child.

According to Section 26(3) the Magistrate or the police officer, as the

case may be, may, in the case of a child having a mental or physical disability,

seek the assistance of a special educator or any person familiar with the manner

of communication of the child or an expert in that field, having such

qualifications, experience and on payment of such fees as may be prescribed, to

record the statement of the child. By virtue of Section 26(4) wherever possible,

the Magistrate or the police officer, as the case may be, shall ensure that the

statement of the child is also recorded by audio-video electronic means.

Comment

Section 26 of the POCSO Act allows for the establishment of special courts to

expedite the trial of offenses under the Act. It aims to ensure that cases

involving child sexual abuse are handled efficiently and with the necessary

sensitivity. By designating specific courts, this section seeks to minimize delays

in the judicial process, which can be particularly distressing for child victims.

The provision reflects a commitment to providing timely justice, emphasizing

the importance of a legal framework that prioritizes the protection and welfare

of children throughout the legal proceedings.

MEDICAL EXAMINATION OF A CHILD

By virtue of Section 27(1) the medical examination of a child in respect

of whom any offence has been committed under this Act, shall, notwithstanding

that a First Information Report or complaint has not been registered for the

offences under this Act, be conducted in accordance with section 164A of the

Code of Criminal Procedure, 1973 (2 of 1973).

In case the victim is a girl child, the medical examination shall be conducted by

a woman doctor.

35

The medical examination shall be conducted in the presence of the parent of the

child or any other person in whom the child reposes trust or confidence.

36

35

Sec 27(2)

36

Sec 27(3)

Section 27(4) states that where, in case the parent of the child or other

person referred to in sub-section (3) cannot be present, for any reason, during

the medical examination of the child, the medical examination shall be

conducted in the presence of a woman nominated by the head of the medical

institution.

Comment

Section 27 of the POCSO Act mandates that the government establish

guidelines for the appointment and training of special public prosecutors who

handle cases under the Act. This provision ensures that these prosecutors are

equipped with the necessary skills and knowledge to effectively manage

sensitive cases involving child victims. By focusing on specialized training,

Section 27 aims to enhance the quality of legal representation for children,

ensuring that their rights and needs are prioritized in the judicial process. This

approach reflects a broader commitment to creating a more supportive and

effective legal environment for addressing child sexual offenses.

CASE LAW

In State of Karnataka v. Noor Ahammed Fakeersab

37

, the Karnataka High

Court addressed the issue of non-compliance with the mandatory medical

examination under Section 27 of the POCSO Act. The Court emphasized that

the failure to conduct a medical examination as per the statutory requirements

does not automatically lead to the acquittal of the accused. The Court observed

that while the medical examination is crucial for corroborating the victim's

testimony, its absence does not render the prosecution's case untenable if other

evidence is sufficient.

CHAPTER VII

SPECIAL COURTS

DESIGNATION OF SPECIAL COURTS

According to Section 28(1) for the purposes of providing a speedy trial,

the State Government shall in consultation with the Chief Justice of the High

Court, by notification in the Official Gazette, designate for each district, a Court

of Session to be a Special Court to try the offences under the Act:

37

(2019) 13 SCC 417

Provided that if a Court of Session is notified as a children’s court under the

Commissions for Protection of Child Rights Act, 2005 (4 of 2006)or a Special

Court designated for similar purposes under any other law for the time being in

force, then, such court shall be deemed to be a Special Court under this section.

Section 28(2) states that while trying an offence under this Act, a Special

Court shall also try an offence [other than the offence referred to in sub-section

(1)], with which the accused may, under the Code of Criminal Procedure, 1973

(2 of 1974) be charged at the same trial.

Section 28(3) provides that the Special Court constituted under this Act,

notwithstanding anything in the Information Technology Act, 2000 (21 of

2000)shall have jurisdiction to try offences under section 67B of that Act in so

far as it relates to publication or transmission of sexually explicit material

depicting children in any act, or conduct or manner or facilitates abuse of

children online.

Comment

Section 28 of the POCSO Act emphasizes the need for the trial of offenses

under the Act to be conducted as expeditiously as possible. It establishes a time

frame within which cases should be concluded, aiming to minimize the

emotional and psychological burden on child victims. By prioritizing swift

trials, this section seeks to enhance the overall effectiveness of the legal process,

ensuring that justice is served without unnecessary delays. This commitment to

timely adjudication reflects a broader understanding of the need to protect and

support child victims throughout the judicial proceedings.

CASE LAW

In State of Punjab vs. Gurmeet Singh

38

, the Court held that it is essential

for Special Courts under the POCSO Act to be designated by the state

government in consultation with the Chief Justice of the High Court. It also

emphasized the importance of expediting cases of sexual offenses against

children, noting that delay in such trials would not serve the interests of justice.

PRESUMPTION AS TO CERTAIN OFFENCES [SECTION 29]

Where a person is prosecuted for committing or abetting or attempting to

commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special

38

(2021) 3 SCC 669

Court shall presume, that such person has committed or abetted or attempted to

commit the offence, as the case may be unless the contrary is proved.

Comment

Section 29 of the POCSO Act creates a presumption of guilt for the accused in

cases involving specific offenses against children, meaning that if a child

victim's testimony is credible, the burden of proof shifts to the accused to

demonstrate their innocence. This provision is designed to enhance the

protection of child victims by making it easier to secure convictions in sexual

offenses. By establishing this presumption, Section 29 acknowledges the unique

vulnerabilities of children and aims to facilitate justice in cases that can often be

difficult to prosecute, thereby reinforcing the legal system's commitment to

safeguarding children's rights and well-being.

CASE LAW

In Imran Shamim Khan v. The State of Maharashtra

39

the High Court in

the case held that the nature of answers given by the victim at the time of cross

examination needs to be taken into consideration for taking judicial approach.

The answers are not in denial.

In Suresh @ Sureshkumar v. State

40

, the Court held that it is pertinent to

note that the reverse burden contemplated under Section 29 of POCSO Act,

2012 must not only be required to be strictly complied with, but also may be

subject to proof of some basic facts as envisaged under the statute

PRESUMPTION OF CULPABLE MENTAL STATE

By virtue of Section 30(1) in any prosecution for any offence under this

Act which requires a culpable mental state on the part of the accused, the

Special Court shall presume the existence of such mental state but it shall be a

defence for the accused to prove the fact that he had no such mental state with

respect to the act charged as an offence in that prosecution.

According to Section 30(2) for the purposes of this section, a fact is said to be

proved only when the Special Court believes it to exist beyond reasonable doubt

and not merely when its existence is established by a preponderance of

probability.

Explanation

39

2019 ALL MR (Cri) 1375

40

(2021) 4 SCC 99

In this section, “culpable mental state” includes intention, motive, knowledge of

a fact and the belief in, or reason to believe, a fact.

Comment

Section 30 of the POCSO Act addresses the treatment of child witnesses during

legal proceedings. It ensures that children are provided with the necessary

support and protections to minimize trauma while giving testimony. This

provision emphasizes the importance of a child-friendly approach in the judicial

process, recognizing the emotional and psychological challenges faced by

young victims. By prioritizing the well-being of child witnesses, Section 30

aims to create a supportive environment that encourages their participation in

the legal process, ultimately contributing to more effective and sensitive

handling of cases involving child sexual offenses.

CASE LAW

In the case of Veerpal @ Titu v. State

41

, the Delhi High Court addressed

the application of Sections 29 and 30 of the POCSO Act. The court acquitted

the accused, stating that in the absence of foundational facts being proved

beyond a reasonable doubt, the reliance on the presumption under Sections 29

and 30 by the trial court to base the conviction was misplaced.

APPLICATION OF CODE OF CRIMINAL PROCEDURE, 1973 TO

PROCEEDINGS BEFORE A SPECIAL COURT [SECTION 31]

Save as otherwise provided in this Act, the provisions of the Code of

Criminal Procedure, 1973 (2 of 1974)(including the provisions as to bail and

bonds)shall apply to the proceedings before a Special Court and for the

purposes of the said provisions, the Special Court shall be deemed to be a court

of Sessions and the person conducting a prosecution before a Special Court,

shall be deemed to be a Public Prosecutor.

Comment

Section 31 of the POCSO Act establishes the framework for the punishment of

offenses under the Act. It outlines the penalties for various sexual offenses

against children, ensuring that they are severe enough to deter potential

offenders. This section reflects the seriousness with which child sexual abuse is

treated in the legal system. By stipulating stringent punishments, Section 31

41

(2019) 10 SCC 615

aims to provide justice for victims and emphasize the commitment to protecting

children's rights and safety. It underscores the need for a robust legal response

to such offenses, reinforcing societal norms against child exploitation and

abuse.

CASE LAW

In Bablu Yadav v. State of Bihar

42

,the Court addressed the procedural

aspects of POCSO cases, emphasizing the importance of adhering to established

legal procedures, including those outlined in the CrPC, to ensure a fair trial.

SPECIAL PUBLIC PROSECUTORS

Section 32(1) states that the State Government shall, by notification in the

Official Gazette, appoint a Special Public Prosecutor for every Special Court for

conducting cases only under the provisions of this Act.

Section 32(2) provides that a person shall be eligible to be appointed as a

Special Public Prosecutor under sub-section (1) only if he had been in practice

for not less than seven years as an advocate.

Section 32(3) states that every person appointed as a Special Public

Prosecutor under this section shall be deemed to be a Public Prosecutor within

the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973

(2 of 1974)and provision of that Code shall have effect accordingly.

Comment

Section 32 of The Protection of Children from Sexual Offences (POCSO) Act,

2012, plays a crucial role in ensuring the effective and sensitive prosecution of

child sexual abuse cases. It mandates the appointment of Special Public

Prosecutors who are specifically trained to handle such cases, which require a

higher level of expertise due to the vulnerability of child victims. The provision

specifies that only individuals with at least seven years of legal practice can be

appointed, ensuring that prosecutors possess the necessary experience. This

targeted approach helps in providing justice to child victims in a more

compassionate and efficient manner, ultimately strengthening the legal

framework to address child sexual offenses in India.

CASE LAW

42

(2024) SCC OnLine SC 37

In Raghavendra Y.T. & Others v. State of Karnataka (2024), the

Karnataka High Court examined the appointment of Special Public Prosecutors

under Section 32. The Court emphasized that the State Government must

appoint Special Public Prosecutors exclusively for POCSO cases, ensuring they

are trained to handle child victims and witnesses appropriately. The Court also

highlighted the necessity for these prosecutors to have a minimum of seven

years of practice as an advocate, as stipulated by the Act.

CHAPTER VIII

PROCEDURE AND POWERS OF SPECIAL COURTS AND

RECORDING OF EVIDENCE

PROCEDURE AND POWERS OF SPECIAL COURT

According to Section 33(1) a Special Court may take cognizance of any

offence, without the accused being committed to it for trial, upon receiving a

complaint of facts which constitute such offence, or upon a police report of such

facts.

By virtue of Section 33(2) the Special Public Prosecutor, or as the case may be,

the counsel appearing for the accused shall, while recording the examination-in-

chief, cross-examination or re-examination of the child, communicate the

questions to be put to the child to the Special Court which shall in turn put those

questions to the child.

The Special Court may, if it considers necessary, permit frequent breaks for the

child during the trial.

43

Section 33(4) states that the Special Court shall create a child-friendly

atmosphere by allowing a family member, a guardian, a friend or a relative, in

whom the child has trust or confidence, to be present in the court.

The Special Court shall ensure that the child is not called repeatedly to testify in

the court.

44

Section 33(6) provides that the Special Court shall not permit aggressive

questioning or character assassination of the child and ensure that dignity of the

child is maintained at all times during the trial.

43

Sec 33(3)

44

Sec 33(5)

According to Section 33(7) the Special Court shall ensure that the identity of the

child is not disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may

permit such disclosure, if in its opinion such disclosure is in the interest of the

child.

Explanation

For the purposes of this sub-section, the identity of the child shall include the

identity of the child's family, school, relatives, neighbourhood or any other

information by which the identity of the child may be revealed.

By virtue of Section 33(8) in appropriate cases, the Special Court may, in

addition to the punishment, direct payment of such compensation as may be

prescribed to the child for any physical or mental trauma caused to him or for

immediate rehabilitation of such child.

Section 33(9) states that subject to the provisions of this Act, a Special Court

shall, for the purpose of the trial of any offence under this Act, have all the

powers of a Court of Session and shall try such offence as if it were a Court of

Session, and as far as may be, in accordance with the procedure specified in the

Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of

Session.

Comment

Section 33 of the POCSO Act provides for the appointment of child welfare

committees to oversee the care and protection of child victims during legal

proceedings. This section emphasizes the importance of ensuring that the best

interests of the child are prioritized throughout the judicial process. It aims to

facilitate a holistic approach to justice, recognizing the need for support beyond

legal proceedings, including psychological and emotional assistance. By

involving child welfare committees, Section 33 reinforces the commitment to

safeguarding children's rights and well-being, ensuring they receive

comprehensive support during a challenging time.

PROCEDURE IN CASE OF COMMISSION OF OFFENCE BY CHILD

AND DETERMINATION OF AGE BY SPECIAL COURT

Section 34(1) states that where any offence under this Act is

committed by a child, such child shall be dealt with under the provisions of [the

Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].

45

By virtue of Section 34(2) if any question arises in any proceeding

before the Special Court whether a person is a child or not, such question shall

be determined by the Special Court after satisfying itself about the age of such

person and it shall record in writing its reasons for such determination.

According to Section 34(3) no order made by the Special Court

shall be deemed to be invalid merely by any subsequent proof that the age of a

personas determined by it under sub-section (2) was not the correct age of that

person.

Comment

Section 34 of the POCSO Act addresses the provision for multiple offenses

against children. It allows for the prosecution of an individual for multiple

offenses committed against one or more children within a single trial. This

section aims to streamline the legal process and ensure that all relevant offenses

are addressed together, reducing the trauma associated with multiple court

appearances for child victims. By facilitating comprehensive trials, Section 34

reinforces the commitment to delivering justice efficiently while protecting the

rights and dignity of children throughout the legal proceedings.

PERIOD FOR RECORDING OF EVIDENCE OF CHILD AND

DISPOSAL OF CASE

By virtue of Section 35(1) the evidence of the child shall be recorded within a

period of thirty days of the Special Court taking cognizance of the offence and

reasons for delay, if any, shall be recorded by the Special Court.

Section 35(2) provides that the Special Court shall complete the trial, as far as

possible, within a period of one year from the date of taking cognizance of the

offence.

Comment

Section 35 of the POCSO Act allows for the imposition of enhanced penalties

for certain offenses against children when they are committed under specific

aggravating circumstances. This provision acknowledges the severity of such

crimes and aims to ensure that the punishment reflects the harm inflicted on

45

Subs. by Act 25 of 2019, s. 9, for “the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)” (w.e.f. 16-

08-2019).

vulnerable victims. By establishing stricter penalties for aggravated offenses,

Section 35 reinforces the legal system's commitment to deterring potential

offenders and providing justice for child victims. It underscores the importance

of a robust response to child sexual exploitation and abuse, prioritizing the

safety and rights of children in society.

CHILD NOT TO SEE ACCUSED AT THE TIME OF TESTIFYING

According to Section 36(1) the Special Court shall ensure that the child is not

exposed in anyway to the accused at the time of recording of the evidence,

while at the same time ensuring that the accused is in a position to hear the

statement of the child and communicate with his advocate.

Section 36(2) provides that for the purposes of sub-section (1), the Special

Court may record the statement of a child through video conferencing or by

utilising single visibility mirrors or curtains or any other device.

Comment

Section 36 of the POCSO Act allows for the framing of rules and guidelines for

the implementation of the Act. This provision empowers the government to

create necessary regulations that facilitate the effective enforcement of the law,

ensuring that the rights and protection of children are upheld. By enabling the

formulation of specific procedures and protocols, Section 36 aims to enhance

the operational aspects of the POCSO framework. This flexibility ensures that

the Act can adapt to changing circumstances and needs, reinforcing the

commitment to safeguarding children from sexual offenses while providing

clarity and support for all stakeholders involved in the process.

CASE LAW

In State of Rajasthan v. Nand Lal

46

,the Court held that the child’s

testimony should be recorded in such a way that the accused does not come into

the child’s view, as per the mandate of Section 36 of the POCSO Act. The

judgment emphasized the importance of protecting the emotional and

psychological state of the child during testimony.

TRIALS TO BE CONDUCTED IN CAMERA [SECTION 37]

The Special Court shall try cases in camera and in the presence of the parents of

the child or any other person in whom the child has trust or confidence:

46

(2021) 4 RCC 691 (Raj)

Provided that where the Special Court is of the opinion that the child needs to

be examined at a place other than the court, it shall proceed to issue a

commission in accordance with the provisions of section 284 of the Code of

Criminal Procedure, 1973 (2 of 1974).

Comment

Section 37 of the POCSO Act emphasizes the need for public awareness and

education regarding child protection laws and the rights of children. It mandates

the government to undertake measures to disseminate information about the

Act, its provisions, and the importance of preventing child sexual offenses. By

promoting awareness, this section aims to empower communities, encourage

reporting of offenses, and foster a culture of vigilance and responsibility

towards child safety. It highlights the crucial role of education in preventing

abuse and ensuring that society collectively works to protect children’s rights

and well-being.

ASSISTANCE OF AN INTERPRETER OR EXPERT WHILE

RECORDING EVIDENCE OF CHILD

By virtue of Section 38(1) wherever necessary, the Court may take the

assistance of a translator or interpreter having such qualifications, experience

and on payment of such fees as may be prescribed, while recording the evidence

of the child.

Section 38(2) provides that if a child has a mental or physical disability, the

Special Court may take the assistance of a special educator or any person

familiar with the manner of communication of the child or an expert in that

field, having such qualifications, experience and on payment of such fees as

may be prescribed to record the evidence of the child.

Comment

Section 38 of the POCSO Act addresses the review and amendment of the Act,

allowing for periodic evaluation of its provisions and effectiveness. This section

underscores the importance of adapting the legal framework to evolving societal

needs and challenges related to child protection. By providing a mechanism for

review, Section 38 ensures that the Act remains relevant and responsive to

emerging issues in child safety and welfare. This proactive approach reflects a

commitment to continuously improving measures for safeguarding children and

enhancing the legal system's capacity to address child sexual offenses

effectively.

CHAPTER IX

MISCELLANEOUS PROVISIONS IN THE ACT

GUIDELINES FOR CHILD TO TAKE ASSISTANCE OF EXPERTS,

ETC [SECTION 39]

Subject to such rules as may be made in this behalf, the State Government shall

prepare guidelines for use of non-governmental organisations, professionals and

experts or persons having knowledge of psychology, social work, physical

health, mental health and child development to be associated with the pre-trial

and trial stage to assist the child.

Comment

Section 39 of the POCSO Act emphasizes the responsibilities of various

authorities and stakeholders in implementing the provisions of the Act

effectively. It outlines the need for cooperation and coordination among law

enforcement agencies, child welfare bodies, and the judiciary to ensure the

protection of children's rights. This section reinforces the collaborative approach

required to combat child sexual offenses and highlights the importance of a

unified response in addressing these serious crimes. By fostering cooperation,

Section 39 aims to enhance the effectiveness of child protection efforts and

ensure that the legal framework operates seamlessly to safeguard vulnerable

children.

CASE LAW

In State of Maharashtra and Another v. Dr. Maroti Son of Kashinath

Pimpalkar

47

, the Supreme Court underscores the importance of support persons

in the legal process. The Court emphasized the need for a child-friendly

environment during trials and the role of support persons in facilitating the

child's testimony.

RIGHT OF CHILD TO TAKE ASSISTANCE OF LEGAL

PRACTITIONER [SECTION 40]

Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973

(2 of 1974)the family or the guardian of the child shall be entitled to the

assistance of a legal counsel of their choice for any offence under this Act:

47

(2022) 9 SCC 571

Provided that if the family or the guardian of the child are unable to afford a

legal counsel, the Legal Services Authority shall provide a lawyer to them.

Comment

Section 40 of the POCSO Act provides for the application of the Act to all

persons, regardless of their age or status, highlighting that the protection of

children from sexual offenses is a universal responsibility. This section

reinforces the idea that everyone in society has a role in safeguarding children

and that the legal framework applies equally to all individuals. By emphasizing

inclusivity, Section 40 aims to promote awareness and accountability among the

public, fostering a collective commitment to prevent and address child sexual

abuse effectively. This approach underscores the importance of community

involvement in creating a safer environment for children.

CASE LAW

In Neelam v. State of Haryana

48

, the Court ruled on the significance of a

child’s psychological wellbeing, emphasizing that the trauma of a sexual

offense can be compounded by the legal process itself.

PROVISIONS OF SECTIONS 3 TO 13 NOT TO APPLY IN CERTAIN

CASES [SECTION 41]

The provisions of sections 3 to 13 (both inclusive) shall not apply in case of

medical examination or medical treatment of a child when such medical

examination or medical treatment is undertaken with the consent of his parents

or guardian.

Comment

Section 41 of the POCSO Act provides for the repeal of previous laws related to

child sexual offenses, specifically the Indecent Representation of Women

(Prohibition) Act, 1986, as it pertains to children. This section signifies a move

towards a more comprehensive and dedicated legal framework for addressing

child sexual abuse and exploitation. By replacing outdated provisions, Section

41 aims to streamline the legal process and enhance the protection of children

under the POCSO Act. This repeal reflects a commitment to modernizing child

protection laws and ensuring they are robust and effective in responding to

current challenges.

CASE LAW

48

Criminal Appeal No. 479 of 2022

In Dr. P. Rajendran v. State

49

, the Court observed that Section 41 of the

POCSO Act exempts medical examinations or treatments conducted with the

consent of the child's parents or guardian from the provisions of Sections 3 to

13. However, the Court noted that the applicability of Section 41 depends on the

facts of the case, particularly whether the medical examination was conducted

with proper consent and whether the alleged actions during the examination

amounted to sexual assault. The Court emphasized that the intent behind

Section 41 is to facilitate necessary medical procedures without the constraints

of the Act's provisions, provided there is valid consent.

ALTERNATE PUNISHMENT [SECTION 42]

[Where an act or omission constitutes an offence punishable under this Act and

also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376]

50

,

[376A, 376AB, 376B, 376C, 376D, 376DA, 376DB],

51

[376E, section 509 of

the Indian Penal Code or section 67B of the Information Technology Act, 2000

(21 of 2000)]

52

, then, notwithstanding anything contained in any law for the

time being in force, the offender found guilty of such offence shall be liable to

punishment only under this Act or under the Indian Penal Code as provides for

punishment which is greater in degree.

Comment

Section 42 of the POCSO Act addresses the relationship between the POCSO

Act and other laws, establishing that the provisions of the POCSO Act will

prevail in cases of conflict with other laws relating to sexual offenses against

children. This section ensures that the specific protections and procedures

outlined in the POCSO Act take precedence, reinforcing the commitment to

safeguarding children's rights and well-being. By clarifying the hierarchy of

laws, Section 42 aims to provide a clear legal framework for addressing child

sexual abuse, ensuring that the most effective measures are prioritized in

protecting vulnerable children.

STATE AMENDMENT

ARUNACHAL PRADESH

AMENDMENT OF SECTION 42

49

(2018) 16 SCC 742

50

Subs. by Act 13 of 2013, s. 29, for s. 42 (w.e.f. 3-2-2013).

51

Subs. by Act 22 of 2018, s. 25, for “376A, 376C, 376D” (w.e.f. 21-4-2018).

52

Subs. by Act 25 of 2019, s. 10, for “376E or section 509 of the Indian Penal Code (45 of 1860)” (w.e.f. 16-08-2019).

In section 42 of the Protection of Children Act, 2012 for the words figures and

letters sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A,

376C, 376D, 376E or section 509 of the Indian Penal Code the words figures

and letters sections 166A 354A, 354B, 354C, 354D, 370, 370A, 375, 376,

376A, 376AA, 376C, 376D, 376DA, 376E or section 509 of the Indian Penal

Code shall be substituted.

[Vide Arunachal Pradesh Act 3 of 2019, s. 26]

ACT NOT IN DEROGATION OF ANY OTHER LAW [SECTION 42A]

The provisions of this Act shall be in addition to and not in derogation of the

provisions of any other law for the time being in force and, in case of any

inconsistency, the provisions of this Act shall have overriding effect on the

provisions of any such law to the extent of the inconsistency.

PUBLIC AWARENESS ABOUT ACT [SECTION 43]

The Central Government and every State Government, shall take all measures to

ensure that—

(a) the provisions of this Act are given wide publicity through media

including the television, radio and the print media at regular intervals to make

the general public, children as well as their parents and guardians aware of the

provisions of this Act;

(b) the officers of the Central Government and the State Governments and

other concerned persons (including the police officers) are imparted periodic

training on the matters relating to the implementation of the provisions of the

Act.

Comment

Section 43 of the POCSO Act outlines the specific definitions and

interpretations of terms used within the Act. This section is crucial for ensuring

clarity and consistency in the application of the law, as it defines key concepts

related to child protection and sexual offenses. By providing clear definitions,

Section 43 helps to eliminate ambiguity in legal proceedings, aiding law

enforcement, legal professionals, and the judiciary in effectively applying the

provisions of the Act. This clarity reinforces the commitment to protecting

children and ensuring that justice is served in cases of sexual exploitation and

abuse.

MONITORING OF IMPLEMENTATION OF ACT

By virtue of Section 44(1) the National Commission for Protection of Child

Rights constituted under section 3, or as the case may be, the State Commission

for Protection of Child Rights constituted under section 17, of the Commissions

for Protection of Child Rights Act, 2005 (4 of 2006) shall, in addition to the

functions assigned to them under that Act, also monitor the implementation of

the provisions of this Act in such manner as may be prescribed.

According to Section 44(2) the National Commission or, as the case may be, the

State Commission, referred to in sub-section (1), shall, while inquiring into any

matter relating to any offence under this Act, have the same powers as are

vested in it under the Commissions for Protection of Child Rights Act, 2005 (4

of 2006).

Section 44(3) states that the National Commission or, as the case may be, the

State Commission, referred to in sub-section (1), shall, also include, its

activities under this section, in the annual report referred to in section 16 of the

Commissions for Protection of Child Rights Act, 2005 (4 of 2006).

Comment

Section 44 of the POCSO Act provides for the establishment of guidelines for

the procedures to be followed during investigations and trials involving child

sexual offenses. This section emphasizes the importance of child-sensitive

approaches in legal processes, ensuring that the needs and rights of child

victims are prioritized. By outlining specific protocols, Section 44 aims to

facilitate smoother investigations and trials, minimizing trauma for children

while ensuring that justice is effectively served. This provision reflects a

broader commitment to creating a legal environment that is both protective and

responsive to the vulnerabilities of child victims.

POWER TO MAKE RULES

Section 45(1) provides that the Central Government may, by notification in the

Official Gazette, make rules for carrying out the purposes of this Act.

Section 45(2) states that in particular, and without prejudice to the generality of

the foregoing powers, such rules may provide for all or any of the following

matters, namely:—

[(a) the manner of deleting or destroying or reporting about pornographic

material in any form involving a child to the designated authority under sub-

section (1) of section 15;

(aa) the manner of reporting about pornographic material in any form

involving a child under sub-section (2) of section 15;]

53

[(ab)]

54

the qualifications and experience of, and the fees payable to, a

translator or an interpreter, a special educator or any person familiar with the

manner of communication of the child or an expert in that field, under sub-

section (4) of section 19; sub-sections(2) and (3) of section 26 and section 38;

(b) care and protection and emergency medical treatment of the child

under sub-section (5) of section 19;

(c) the payment of compensation under sub-section (8) of section 33;

(d) the manner of periodic monitoring of the provisions of the Act under

sub-section (1) of section44.

According to Section 45(3) every rule made under this section shall be laid, as

soon as may be after it is made, before each House of Parliament, while it is in

session, for a total period of thirty days which may be comprised in one session

or in two or more successive sessions, and if, before the expiry of the session

immediately following the session or the successive sessions aforesaid, both

Houses agree in making any modification in the rule or both Houses agree that

the rule should not be made, the rule shall thereafter have effect only in such

modified form or be of no effect, as the case may be; so, however, that any such

modification or annulment shall be without prejudice to the validity of anything

previously done under that rule.

Comment

Section 45 of the POCSO Act empowers the central government to make rules

for the effective implementation of the Act. This provision allows for the

development of detailed regulations and guidelines that support the enforcement

of child protection measures and the prosecution of offenses under the Act. By

enabling the creation of specific rules, Section 45 ensures that the Act can adapt

to changing circumstances and improve the mechanisms for safeguarding

children. This flexibility is crucial for enhancing the overall effectiveness of the

POCSO framework and reinforcing the commitment to protecting children's

rights and welfare in various contexts.

POWER TO REMOVE DIFFICULTIES

53

Ins. by Act 25 of 2019, s. 11 (w.e.f. 16-08-2019).

54

Clause (a) re-lettered as clause (ab) thereof by Act 25 of 2019, s. 11 (w.e.f. 16-08-2019).

By virtue of Section 46(1) if any difficulty arises in giving effect to the

provisions of this Act, the Central Government may, by order published in the

Official Gazette, make such provisions not inconsistent with the provisions of

this Act as may appear to it to be necessary or expedient for removal of the

difficulty:

Provided that no order shall be made under this section after the expiry of the

period of two years from the commencement of this Act.

Every order made under this section shall be laid, as soon as may be after it is

made, before each House of Parliament.

55

Comment

Section 46 of the POCSO Act allows for the appointment of a designated

authority to oversee the implementation of the Act and ensure compliance with

its provisions. This section underscores the importance of having a dedicated

body responsible for monitoring and facilitating the effective execution of child

protection measures. By establishing such an authority, Section 46 aims to

enhance accountability and ensure that the rights of children are prioritized in

all related processes. This provision reflects a commitment to a systematic

approach to child welfare and protection, reinforcing the framework's overall

effectiveness in combating child sexual offenses.

THE SCHEDULE

[See section 2(c)]

ARMED FORCES AND SECURITY FORCES CONSTITUTED UNDER:

(a) The Air Force Act, 1950 (45 of 1950);

(b) The Army Act, 1950 (46 of 1950);

(c) The Assam Rifles Act, 2006 (47 of 2006);

(d) The Bombay Home Guard Act, 1947 (3 of 1947);

(e) The Border Security Force Act, 1968 (47 of 1968);

(f) The Central Industrial Security Force Act, 1968 (50 of 1968);

(g) The Central Reserve Police Force Act, 1949 (66 of 1949);

55

Sec 46(2)

(h) The Coast Guard Act, 1978 (30 of 1978);

(i) The Delhi Special Police Establishment Act, 1946 (25 of 1946);

(j) The Indo-Tibetan Border Police Force Act, 1992 (35 of 1992);

(k) The Navy Act, 1957 (62 of 1957);

(l) The National Investigation Agency Act, 2008 (34 of 2008);

(m) The National Security Guard Act, 1986 (47 of 1986);

(n) The Railway Protection Force Act, 1957 (23 of 1957);

(o) The Sashastra Seema Bal Act, 2007 (53 of 2007);

(p) The Special Protection Group Act, 1988 (34 of 1988);

(q) The Territorial Army Act, 1948 (56 of 1948);

(r) The State police forces (including armed constabulary) constituted under the

State laws to aid the civil powers of the State and empowered to employ force

during internal disturbances or otherwise including armed forces as defined in

clause (a) of section 2 of the Armed Forces (Special Powers) Act, 1958.

LANDMARK CASES UNDER THE POCSO ACT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was

introduced to provide a comprehensive legal framework against sexual offences

involving children. It ensures not only stringent punishment for offenders but

also emphasizes child-friendly procedures during investigation and trial. Several

important judicial pronouncements have shaped the interpretation and

application of this Act. Some of the most significant cases are discussed below.

In Subramanian Swamy v. Raju

56

, while the primary issue concerned

juveniles, the Supreme Court observed that special legislations like POCSO

must always be interpreted liberally to ensure the welfare of children. The

ruling underscored that such laws are intended to prioritize child protection and

therefore should not be subjected to narrow interpretations.

In Independent Thought v. Union of India

57

, the Supreme Court examined

the marital rape exception under the Indian Penal Code. Exception 2 to Section

375 IPC earlier allowed a husband to have sexual relations with his wife even if

she was between fifteen and eighteen years of age. The Court ruled that such

sexual intercourse amounts to rape and should be punishable, thereby extending

56

(2014) 8 SCC 390

57

(2017) 10 SCC 800

the protection of the POCSO Act to minor brides. This ruling was a major step

in harmonizing the IPC with POCSO and reaffirmed that marriage cannot be

used as a defense for sexual exploitation of children.

The case of Alakh Alok Srivastava v. Union of India

58

, highlighted

concerns about the gender-specific language of POCSO. A public interest

litigation sought the inclusion of gender-neutral provisions to protect both boys

and girls equally. The Supreme Court directed the Union Government to

examine the matter and reiterated that the guiding principle in all such cases

must be the best interest of the child.

Although delivered before the enactment of POCSO, the ruling in State of

Punjab v. Gurmit Singh

59

, is often cited for its relevance. The Court stressed

that the testimony of a child victim can be sufficient to convict an accused if it

is credible and trustworthy, and corroboration is not always mandatory. This

principle continues to be applied in POCSO cases where children’s statements

form the core of the prosecution.

In Eera v. State (NCT of Delhi)

60

, the Supreme Court considered the

scope of the definition of “child.” It clarified that the term refers strictly to a

person below eighteen years of age, regardless of their mental maturity. This

interpretation prevents any narrowing of the protective scope of POCSO and

ensures that biological age is the only decisive factor in determining

applicability.

The judgment in Bijoy @ Guddu Das v. State of West Bengal

61

, dealt with

the importance of establishing the age of the victim. The Court emphasized that

reliable documentary evidence such as school records, birth certificates, or

medical tests should be used to confirm age, since the applicability of POCSO

depends upon whether the victim is a minor.

Sentencing under POCSO was addressed in Union of India v. Shankar

Kisanrao Khade (2017) 1 SCC 602. Here, the Supreme Court noted that while

punishment must reflect the seriousness of sexual offences against children, it

should also leave space for reformative justice. This balanced approach ensures

that sentences serve both as deterrence and as an opportunity for rehabilitation

where appropriate.

58

(2018) 17 SCC 291

59

(1996) 2 SCC 384

60

(2017) 15 SCC 133

61

(2017) 11 SCC 516

In Nipun Saxena v. Union of India

62

, the Supreme Court issued extensive

directions to safeguard the confidentiality and dignity of child victims. It

prohibited disclosure of the identity of victims in any form of media and

directed that all documents revealing such identity should be kept under sealed

cover. The Court emphasized that protecting the anonymity of the child is a

crucial element of child-friendly justice.

One of the most widely discussed cases is Attorney General for India v.

Satish

63

. The matter arose from a controversial ruling of the Bombay High

Court which had held that pressing a child’s breasts without “skin-to-skin

contact” did not amount to sexual assault under Section 7 of POCSO. The

Supreme Court rejected this interpretation and clarified that the determining

factor is the sexual intent behind the act, not merely the nature of physical

contact. This judgment ensured that the protective scope of POCSO remained

robust and that no form of sexual exploitation of children is trivialized.

These judicial pronouncements collectively highlight the child-centric

approach that Indian courts have adopted under the POCSO Act. They reinforce

principles such as reliance on credible child testimony, the importance of

establishing the victim’s age, the necessity of safeguarding privacy, and the

balance between deterrent and reformative punishment. Above all, they

demonstrate the judiciary’s role in ensuring that the objectives of the POCSO

Act are realized effectively and that children are shielded from sexual

exploitation in all its forms.

62

(2019) 2 SCC 703

63

(2021) SCC OnLine SC 1076