LEGAL RESEARCH PAPER

EVIDENTIARY PRCEDURES AND TRIAL

PROCEEDINGS UNDER THE POCSO ACT:
AN EFFECTIVE POLICY OR MIRAGE?

SUBMITTED BY:

VINAY MINZ
01916503812
BA. LLB
9TH SEMESTER

1
 CONTENTS

 ACKNOWLEDGEMENT
 CERTIFICATE
 ABSTRACT
 INTRODUCTION
 OVERVIEW
 Multi-sectoral Approach
 Punishments for Offences in the Act
 THE UNIQUE FEATURES OF THE ACT
 PROCEDURES UNDER POCSO ACT
 THE ADVANTAGES OF PROCEEDING UNDER THE POCSO
ACT COMPARED TO THE INDIAN PENAL CODE
 COMMISSIONS UNDER THE POCSO ACT 2012
 INSTRUMENTS AND STANDARDS FOR PROTECTION OF
CHILD RIGHTS
 CONSTITUTION OF INDIA
 INTERNATIONAL CONVENTIONS AND DECLARATIONS
 CRITICAL ANALYSIS ON POCSO ACT
 CASES
 CONCLUSION
 SUGGESTIONS

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 TABLE OF CASES
So. no CASE
1 Ashish Kumar & others. Vs. State of U.P & others MANU/UP/0439 /2015

2 Nishu v. Commissioner of Police, Delhi and Ors. ILC-2014-SC-CRL-Apr-

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3 State v. Aas Mohammad

ACKNOWLEDGEMENT

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This research paper is the outcome of my sincere and dedicated efforts towards paper dealing
withThe POCSO Act which provides special protection under the law who are exposed to
some of the most inhuman cruelties and endure the worst forms of abuseThe successful
completion of my research paper can be owned to numerous people.

Firstly, I would like to express my sincere thanks to our Dean Prof. Kanwal D.P.Singhfor
introducing the concept of preparing a research paper, thereby allowing me to table my
perspective about the discussed topic.

Further, I would particularly thanks Dr. Ravinder Kumar, who encouraged me to research,
extended her help by being available all the time to share her valuable perceptions and
experiences. I would like to extend a special thanks to our Institution’s librarian as well as to
the librarian and staff of the several libraries I visited during my research. I could not have
without the able guidance of the entire esteemed faculty members mentioned and many
others not mentioned herein. I thank them all sincerely for their valuable guidance.

VINAY MINZ
01916503812
BA. LLB
9TH SEMESTER

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 CERTIFICATE

I have the pleasure to certify that Vinay Minz, Enrolment No. 01916503812, a student of
University School of Law and Legal Studies, Dwarka,New Delhi has persuaded her research
work and prepared the present research paper entitled “Evidentiary and trial Procedures under
The POCSO Act” under my supervision and guidance. To the best of my knowledge the
present research paper is the result of her sole research. This is being submitted to Guru
Gobind Singh Indraprastha University for the degree of Bachelor of Laws in partial
fulfilment of the requirement of the said degree.

Dr. Ravinder Kumar

(Signature)
Assistant Professor
University School of Law and Legal Studies

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 ABSTRACT

Children are the greatest gift to humanity but among them are most vulnerable sections in any
society. Their sexual abuse is one of the most heinous crimes imaginable. Child Sexual abuse
is a serious, pervasive social issue. Child sexual abuse is physical or mental violation of a
child with sexual intent. POCSO act is formulated to effectively address the heinous crimes
of sexual abuse and sexual exploitations of children. The objective of this study is to bring
out some shocking facts and its main finding in relation with sexual abuse which are- child
sexual abuse cases under IPC 376,377,354 and POCSO act 2012 were reported by 48%
children. This paper also represents a humble attempt to highlight briefly on the awareness of
POCSO act. Reporting on children is a challenge, especially considering that children are
hardly allowed to speak for themselves. Even raising awareness about their rights is not easy.
India is a signatory to a range of international treaties which deals with children’s rights,
including the United Nations Convention on the Rights of the Child. The Indian Constitution,
gives more protection to children as a special category. The National Commission for
Protection of Child Rights (NCPCR) was set up in March 2007 under the Commission for
Protection of Child Rights Act, 2005, an act of Parliament. They are exposed to some of the
most inhuman cruelties and endure the worst forms of abuse. Since children are provided
special protection under the law, violation of children’s rights is often newsworthy.

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 INTRODUCTION

There is no trust more sacred than the one the world holds with children. There is no duty
more important than ensuring that their rights are respected, that their welfare is protected,
that their lives are free from fear and that they can grow up in peace”

– Kofi Annan

To deal with child sexual abuse cases, the Government has brought in a special law, namely,
The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come
into force with effect from 14th November, 2012 along with the Rules framed thereunder.
The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from
the offences of sexual assault, sexual harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation and speedy trial of offences
through designated Special Courts. The said Act defines a child as any person below eighteen
years of age, and defines different forms of sexual abuse, including penetrative and non-
penetrative assault, as well as sexual harassment and pornography, and deems a sexual
assault to be aggravated under certain circumstances, such as when the abused child is
mentally ill or when the abuse is committed by a person in a position of trust or authority
of the child, like a family member, police officer, teacher, or doctor. The said Act prescribes
stringent punishment graded as per the gravity of the offence, with a maximum term of
rigorous imprisonment for life, and fine. In keeping with the best international child
protection standards, the said Act also provides for mandatory reporting of sexual offences.
This act suggests that any person, who has an apprehension that an offence is likely to be
committed or has knowledge that an offence has been committed, has a mandatory obligation
to report the matter i.e. media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or
photographic facilities. Failure to report attracts punishment with imprisonment of up to six
months or fine or both. It is now mandatory for police to register an FIR in all cases of child
abuse. This act envisages punishing even abetment or an attempt to commit the offences
defined in the act. It recognizes that the intent to commit an offence, even when unsuccessful
needs to be penalized. The punishment for the attempt to commit is up to half the punishment
prescribed for the commission of the offence. As per this act, the child's medical examination
can be conducted even prior to registration of an FIR. Child Welfare Committees (CWC)

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play a vital role under the POCSO Act, cases registered under this act need to be reported to
the CWC within 24 hours of recording the complaint. The CWC should take into account the
opinion of the child to decide on the case within three days and conclude whether the child
should remain in an institution or be with the family.

The CWC should nominate with the consent of the child parent / guardian / other person
whothe child trusts, a support person to assist the child during the investigation and trial of
the case. The State Commissions for Protection of Child Rights (SCPCR) has been
empowered with the responsibility of monitoring the implementation of the provisions of the
POCSO Act2012, to conduct inquiries and to report the activities undertaken under the
POCSO Act 2012, in its annual report. The commission is also empowered to call for a report
on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The rules
laid down in this act also had defined a criterion of awarding the compensations by the
special court that includes loss of educational and employment opportunities along with
disability, disease or pregnancy as the consequence of the abuse.

The said Act provides for Special Courts that conduct the trial in-camera and without
revealing the identity of the child, in a child-friendly manner. Above all, the said Act
stipulates that a case of child sexual abuse must be disposed of within one year from the date
the offence is reported. The said Act recognises almost every known form of sexual abuse
against,childrenas punishable offences, and makes the different agencies of the State, such as 
the police, judiciary and child protection machinery, collaborators in securing justice for a se
xually abused child. Further, by providing for a child-friendly judicial process, the said Act
encourages children who have been victims of sexual abuse to report the offence and seek
redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time,
the said Act will provide a means not only to report and punish those who abuse and exploit
the innocence of children, but also prove an effective deterrent in curbing the occurrence of
these offences.

For offences under this act the burden of proof is shifted on the accused, keeping in view the
vulnerability and innocence of children. To prevent misuse of the law, punishment has
been provided for false complaints or false information with malicious intent. The media has
been barred from disclosing the identity of the child without the permission of the special
court. The punishment for breaching this provision by media may be from six months to one

8
year. For speedy trial, the evidence of the child is to be recorded within a period of 30 days.
Also, the Special Court is to complete the trial within one year.

The said Act is to be implemented with the active participation of the State
Governments.Under Section 39 of the said Act, the State Government is required to frame
guidelines forthe use of persons including non-governmental organisations, professionals and
experts or persons trained in and having knowledge of psychology, social work,
physical health, mentalhealth and child development to assist the child at the trial and pre-
trial stage. The followingguidelines are Model Guidelines formulated by the Central
Government, based on which theState Governments can then frame more extensive and
specific guidelines as per theirspecific needs.

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 OVERVIEW

Child sexual abuse is a kind of physical or mental violation of a child with sexual intent. The
Protection of Children from Sexual Offences Act (POCSO), 2012 has been drafted to
strengthen the legal provisions for the protection of children from sexual abuse and
exploitation.1

Article 15 of the Constitution of India (Prohibition of discrimination on grounds of religion,

race, caste, sex or place of birth‖) allows for positive discrimination.

Article 15 (3) of the Constitution of India states: Nothing in this article shall prevent the State
from making any special provision for women and children.”

Article 39 (Certain principles of policy to be followed by the State) directs State policy
towards securing ―that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment” [Article 39 (f)].

The Convention on the Rights of the Child (CRC) 1989 was ratified by India on 12th
November 1992. The CRC specifies that in all actions concerning children, ―the best
interests‖ of the child shall be a primary consideration [Article 3 (1)]. The POCSO Act, 2012
is a step forward in providing special procedures for children who are survivors of sexual
violence.

The Preamble to the POCSO Act upholds the principles of the Constitution of India and
international law- preamble to the act an act to protect children from offences of sexual
assault, sexual harassment and pornography and provide for establishment of special courts
for trial of such offences and for matters connected therewith or incidental thereto.

Whereas clause (3) of article 15 of the constitution, inter alia, empowers the state to make
special provisions for children; and whereas, the government of India had acceded on the
11th December 1992 to the convention on the rights of the child, adopted by the general

1
Analysing the POCSO Act 2012, Emidio Pinho, Times Of India, April 25, 2013
http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms

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assembly of the united nations, which has prescribed a set of standards to be followed by all
state parties in securing the best interest of the child.

Whereas it is necessary for the proper development of the child that his or her right to privacy
and confidentiality be protected and respected by every person by all means and through all
stages of a judicial process involving the child.

Whereas it is imperative that the law operates in a manner that the best interest and well
being of the child are regarded as being of paramount importance at every stage, to ensure the
healthy physical, emotional, intellectual and social development of the child.

Whereas the state parties to the Convention on the Rights of the Child are required to
undertake all appropriate national, bilateral and multilateral measures to 4 prevent –

(a) The inducement or coercion of a child to engage in any unlawful sexual activity.

(b) The exploitative use of children in prostitution or other unlawful sexual practices.

(c) The exploitative use of children in pornographic performances and materials.

Whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be
effectively addressed.

The POCSO Act 2012 provides for the establishment of Special Courts for trial of offences
under the Act, keeping the best interest of the child as of paramount importance at every
stage of the judicial process. The Act incorporates child friendly procedures for reporting,
recording of evidence, investigation and trial of offences. These include:

 Recording the statement of the child at the residence of the child or at the place of his
choice, preferably by a woman police officer not below the rank of sub-inspector

 No child to be detained in the police station in the night for any reason.

 Police officer to not be in uniform while recording the statement of the child

 The statement of the child to be recorded as spoken by the child

 Assistance of an interpreter or translator or an expert as per the need of the child

 Assistance of special educator or any person familiar with the manner of

communication of the child in case child is disabled

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  Medical examination of the child to be conducted in the presence of the parent of the
child or any other person in whom the child has trust or confidence.

 In case the victim is a girl child, the medical examination shall be conducted by a
woman doctor.

 Frequent breaks for the child during trial

 Child not to be called repeatedly to testify

 No aggressive questioning or character assassination of the child

 In-camera trial of cases

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual
Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the
accused. This provision has been made keeping in view the greater vulnerability and
innocence of children. At the same time, to prevent misuse of the law, punishment has been
provided for making false complaint or proving false information with malicious intent. Such
punishment has been kept relatively light (six months) to encourage reporting. If false
complaint is made against a child, punishment is higher (one year).

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the
Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements
to give the child, care and protection such as admitting the child into shelter home or to the
nearest hospital within twenty-four hours of the report. The SJPU or the local police are also
required to report the matter to the Child Welfare Committee within 24 hours of recording the
complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness 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. The National Commission for the Protection of Child Rights (NCPCR) and State
Commissions for the Protection of Child Rights (SCPCRs) have been made the designated
authority to monitor the implementation of the Act.2

2
The ‘C’ in POCSO Act: A Critical Analysis- Shikha Aggrawal

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Multi-sectoral Approach

Children who have been sexually abused are not only traumatised as a result of their
experience, but are also more vulnerable to further and repeated abuse and at risk of
secondary victimisation at the hands of the justice delivery process. A common example is
the handling of cases of child victims by unspecialized police, prosecutors and judges whoare
not trained in justice for children, children ‘srights or how to deal and communicate
withvictim children and their families. The lack of clear guidelines and procedures on how to
dealwith child victims and their families in a child sensitive manner during the court process
affects the quality of trial and evidence and trial process; the child is subjected in such cases
to repeated probing and questioning, made to relive the traumatic incident again and again,
and thereby suffer in the retelling. Another instance is that of child victims not
receiving proper medical support and counselling, causing physical and mental distress to
the child and his/her family and hampering the healing process for the child. In addition to
this, families and child victims are unable to benefit from legal aid as the appropriate
agencies are not involved at the right stage in the procedure. Child victims do not receive
timely advice and assistance so as to be free from a fear of family breakdowns and social
isolation if the offender is a relative and/or the breadwinner of the family. There is also no
system of supervision for checking the welfare and well-being of child victims during and
after the court process, particularly when the abuser is the parent or guardian of the child.
There is thus a need for prompt and systematic multi-sectoral intervention that will be
conducive to the justice delivery process, minimise the risks of health problems, enhance the
recovery of the child and prevent further trauma. This can be achieved through action that
addresses the needs of the child effectively, not only to protect him from further abuse and
help him deal with his/her trauma but also to ensure that he is not re-victimised in the course
of the justice delivery process. In addition to this, it also has to be ensured that the child is
steered towards the path of healing, recovery and rehabilitation. The prevention of child from
sexual abuse, protection of victims, justice delivery, and rehabilitation of victims are not
isolated issues. The achievement of these objectives requires co-ordinated response of all the
key players, which include the police, prosecution, Courts, medical institutions, psychologists
and counsellors, as well as institutions that provide social services to the children. The
protection of children from violence and abuse thus requires an integrated and coordinated
approach. Needless to say, the identification and understanding of the roles of each of these

13
professionals is crucial to avoid duplication and promote effective convergence. A multi-
sectoral approach, while mindful of children ‘s rights, would address the problems related to
uncoordinated interagency mechanisms that child victims face in the legal and social service
process. It will provide a framework within which the service providers willwork, and
provide a mechanism for information-sharing to help the victim. The process ofinvestigation
and referral of cases will also improve. It is envisaged that such an approachwill ensure
support for the child and his/her family, including assistance with police
and court proceedings, arrangements for emergency shelter for children, arrangements for
counselling, therapy, and training courses, appropriate rehabilitative services including
protective custody and foster care, if necessary; information on and access to financial
assistance, where appropriate, and monitoring of family involvement. The responsibility of
supporting children who have been sexually abused should be
embraced by the whole community, but it is the professionals that work in this field who play
animportant role in enabling the healing process. These guidelines are therefore aimed at
various professionals involved in providing services to the child and other affected persons
including his/her family. Their objective is to foster better response mechanisms involving
coordination amongst these professionals, so as to result in the evolution of a multi-
sectoral,multi-disciplinary approach that will go a long way in achieving the objectives of the
POCSOAct, 2012.

Punishments for Offences in the Act3

Section 3-Penetrative Sexual Assault -Inserting body part or object in a child, or making a
child does this with another.

Section 4-Not less than seven years of imprisonment which may extend to imprisonment for
life, and fine.

Section 5-Aggravated Penetrative Sexual Assault, Penetrative sexual assault by a police

officer, member of armed forces, public servant, staff of remand home, jail, hospital or
school. It includes penetrative sexual assault committed by any other person through gang
penetrative assault, penetrative sexual assault using deadly weapons, fire, heated substance or
corrosive substance, penetrative sexual assault which physically incapacitates the child or

3
the protection of children from sexual offences act, 2012

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causes child to become mentally ill, causing grievous hurt or bodily harm and injury to the
sexual organs of the child, making girl child pregnant, inflicting child with HIV or any other
life threatening disease, penetrative sexual assault more than once, penetrative sexual assault
on a child younger than 12 years, by a relative, owner / manager or staff of any institution
providing services to the child, by a person in a position of trust or authority over the child,
committing penetrative sexual assault knowing the child is pregnant, attempts to murder the
child, by a person previously convicted for a sexual offence, penetrative sexual assault in the
course of communal or sectarian violence, penetrative sexual assault and making the child
strip or parade naked in public.

Section 6-Not less than ten years of imprisonment which may extend to imprisonment for
life, and fine.

Section 7- Sexual Assault- With sexual intent touching the private parts of a child

Section 8-Not less than three years of imprisonment which may extend to five years, and
fine.

Section 9-Aggravated Sexual Assault- Sexual assault by a police officer, member of armed
forces, public servant, staff of remand home/jail/hospital/school, etc, and other acts of sexual
assault by any person as mentioned in the second part of section 5, except making a girl child
pregnant.

Section 10-Not less than five years of imprisonment which may extend to seven years, and
fine.

Section 11-Sexual Harassment of the Child With sexual intent- showing any object/body
part, or making any gesture aimed at a child making a child exhibit her body enticing or
threatening to use a child for pornography.

Section 12- Up to three years of imprisonment and fine.

Section 13-Use of Child for Pornographic Purposes

Section 14 (1)-Imprisonment up to five years and fine and in the event of subsequent
conviction, up to seven years and fine.

Section 14 (2)-Penetrative sexual assault by directly participating in pornographic acts

15
Section 14 (2)- Not less than ten years of imprisonment, which may extend to imprisonment
for life, and fine.

Section 14 (3)- Aggravated penetrative sexual assault by directly participating in

pornographic acts.

Section 14 (3)-Rigorous imprisonment for life and fine.

Section 14 (4)-Sexual assault by directly participating in pornographic acts.

Section 14 (4)-Not less than six years of imprisonment which may extend to eight years, and
fine.

Section 14 (5)-Aggravated sexual assault by directly participating in pornographic acts

Section 14 (5)-Not less than eight years of imprisonment which may extend to ten years, and
fine.

Section 15- Storage of pornographic material involving a child for commercial purposes

Section 15- Three years of imprisonment and / or fine.

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 THE UNIQUE FEATURES OF THE ACT

 The POSCO Act is gender neutral. Consent of the child is irrelevant in cases under the
POSCO Act.
 Both men and women can be offenders under the POSCO Act. (Two offences, which
involves penetration by the penis, can be perpetrated only by men, specifically under
section mentioned below:4
1. 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”; Since the words “any other person”
are used in Section 3(a), women may also be offenders or victims under the second
part of Section 3(a).
2. Section 5(j): “Whoever commits penetrative sexual assault on a child, which in the
case of female child, makes the child pregnant as a consequence of sexual assault.”
However, even in these two offences, women can be joined as abettors under Section
16, POCSO Act.
 The POSCO under Section 19(1) makes it compulsory/mandatory for all the persons
to report cases of sexual offences against children to the local police or the Special
Juvenile Police Unit.
 The Police or Special Juvenile Police Unit are required to bring the matter to the
attention of the Child Welfare Committee within 24 hours of receiving the report. The
statement of the minor to be recorded at his/her residence or at the place of his/her
choice as far as practicable by a woman police officer not below the rank of sub-
inspector.
 The Medical Examination must be conducted only by a female doctor, in presence of
a person the minor trusts. Consent of the parents/guardians and in their absence, the
medical professional is a must on behalf of the minor.

4
Crusading against child sexual abuse through law - introspecting the POSCO- Divyalakshmi

17
  The POSCO provides for Special Courts for speedy trials and in-camera proceedings
to ensure confidentiality and privacy at all times during the investigation or trial. The
minor is not exposed in any way to the accused during the recording of evidence.
 The minor is not to be called repeatedly to testify in court, and may be testified
through a video link through his/her home or any other place as desired by the
minor.The defence to route all questions through the judge and is not allowed to ask
the minor any aggressive or character assassination.
 Setting up of Special Juvenile Courts and appointment of Special Public Prosecutor.
In the past, it has been observed that the trials took unnecessarily long time to dispose
of the matter, but the new bill suggests disposing the case within one year. The
essence of the bill lies in the fact that it is more child-friendly while recording of
evidence, reporting and during investigation and trial.
 A support system from Police administration. Under this act, the statement of the girl
child is to be recorded by a woman police officer who is not below the rank of sub-
inspector. The presence of parents and other relatives during medical examination of
the victim is allowed under the act. In the case of a victim girl, a medical examination
is to be conducted by women doctor.5
 This act provides an arrangement for victim child for their special protection and care.
The act has an implication of the point that the person who has attempted to commit
the crime(s) under the act, is liable for punishment. Just like in rape cases where the
burden of proof is on the accused, here also the burden of proof of his innocence is on
the accused. It should be noted that the act provides punishment for false accusation
as well.6

5
Ministry of Women and Child Development, Government of India. “Report of the Working Group on Child
Rights for the 12th Five year Plan (2012-2017)
6
BREAKING THE SILENCE Child Sexual Abuse in India” published by Human Rights Watch.

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 PROCEDURES UNDER POCSO ACT

The Act requires the State Governments to designate the Sessions Court in each district as a
Special Court to try offences under the Act. If, however, a Children’s Court under the
Commissions for Protection of Child Rights Act, 2005 or Special Court for a similar purpose
has been notified in a district, then that court will try offences under this Act. The process
laid down under the Act and POCSO Rules, 2012 for recording of complaints and trial of
sexual offences against children is explained below:

Medical Examination of the Child

A medical examination of a child can be conducted even before FIR is filed or a complaint is
registered. It must be conducted by a registered medical practitioner in a government hospital
or a hospital run by a local authority within 24 hours from the time of receiving information
about the commission of offence. If such practitioner is not available, the examination can be
conducted by any other registered medical practitioner with the consent of the child or a
person competent to give consent on his or her behalf. If the victim is a girl child, the
examination must be conducted by a woman doctor. The medical examination must be
conducted in the presence of the parent or any other person in whom the child reposes trust or
confidence. If a parent or such other person cannot be present, for any reason, the medical
examination must be conducted in the presence of a woman nominated by the head of the
medical institution.

Reporting of Cases

Who can report?

Any person (including the child) who has an apprehension that an offence under the POCSO
Act is likely to be committed or has knowledge that an offence has been committed has
amandatory obligation to report the matter. An express obligation has also been vested upon
media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities,
to report a case if they come across materials or objects that are sexually exploitative of

19
children. Failure to report is punishable with imprisonment of upto six months or fine or both.
This penalty is, however, not applicable to a child.7

Whom should the case be reported to?

A case must be reported to the Special Juvenile Police Unit or the local police. The police or
the Special Juvenile Police Unit must then record the report in writing, ascribe an entry
number, read the report over to the informant for verification, and enter it in a book. A FIR
must be registered and its copy must be handed to the informant free of charge.

Language of the report

If a case is reported by a child, it must be recorded in simple language so that the child
understands what is being recorded. If it is being recorded in a language that the child does
not understand, a qualified translator or interpreter must be provided to the child.

Ensuring Care and Protection of the Child

The police or the Special Juvenile Police Unit must take the following steps within 24 hours
of the report of the case:

1.Upon recording the case, if the police or Special Juvenile Police Unit is satisfied that the
child is in need of care and protection, it must record its reasons in writing and immediately
arrange to give the child necessary care and protection. This would include admitting the
child into a shelter home or to the nearest hospital. The police must produce the child before
the CWC if the child is found to be in need of care and protection or has no parental support.

2.If the medical examination was not conducted prior to reporting the case, it must be done in
accordance with Section 164A of the Code of Criminal Procedure. Samples must be collected
for the purpose of the forensic tests and sent to the forensic laboratory at the earliest.

3.If the child is in need of urgent medical care and protection, she or he must be taken for
emergency medical care to the nearest hospital or medical care facility centre. Such care
should be administered in the presence of the parent/guardian/other person in whom the child
has trust and confidence.

4.The police or the Special Juvenile Police Unit must report the matter to the CWC and the
Special Court and also indicate the steps taken to extend care and protection to the child. If a

7
the protection of children from sexual offences act, 2012chapter v procedure for reporting of cases

20
Special Court has not been designated the matter must then be reported to the Sessions
Court.8

Role of the CWC

The CWC ‘s role in matters under the POCSO Act is as follows:

1.Upon receiving a report from the police or the Special Juvenile Police Unit stating that the
child against whom an offence has been committed is a child in need of care and protection,
the CWC must utilize its powers under the Juvenile Justice (Care and Protection) of Children
Act, 2000 to determine within three days as to whether a child should be taken out of the
custody of his family or shared household and placed in a children’s home or shelter home.
The capacity of the parents/parent/other person whom the child trusts to provide for the
immediate care and protection needs of the child, the need for the child to remain with
parent/family/extended family, child ‘s age and level of maturity, gender, social and
economic background, disability (if any), history of family violence, and other factors must
be considered by the CWC.

2.In all cases under the Act reported to it by the police or the Special Juvenile Police Unit, the
CWC can provide a support person to assist the child during the investigation and trial of the
case with the consent of the child or the child’s parent/guardian/other person in whom the
child has trust or confidence. The child and his/her family can, however, seek assistance from
any person or organisation working in the field of child rights or child protection, or an
official of a children’s home or shelter home having custody of child, or a person employed
by the DCPU.

Vital Information that must be provided to the Child

The police or the Special Juvenile Police Unit must inform the child and his or her parent,
guardian, support person, or other person whom the child trusts about the following:

 Availability of support services including counselling. If required, they must also

assist in connecting the child and his or her family to persons providing support
services.
 Child’s right to legal aid and legal representation.

8
http://bangalore.citizenmatters.in/articles/how-should-a-case-of-child-abuse-be-dealt-with-under-pocso

21
  Developments, including the arrest of the accused, applications filed, and
court proceedings.
 Availability of public and private emergency and crisis services.
 Procedural steps involved in a criminal prosecution.
 Availability of victim’s compensation benefits. 
 Status of the investigation of the crime, to the extent it is appropriate to inform the
victim and to the extent that it will not interfere with the investigation.
 Filing of charges against a suspected offender.
 Schedule of court proceedings that the child is either required to attend or is entitled
to attend.
 Bail, release or detention status of an offender or suspected offender.
 Rendering of a verdict after trial.
 Sentence imposed on an offender.

Recording Statement of the Child9

Recording of statement by the police

Wherethe child’s statement must be recorded?

A child ‘s statement must be recorded at his or her residence or a place where he or she
usually resides or at a place of his or her choice. Under no circumstances can a child be
detained in the police station in the night. The police officer must also try and ensure that the
statement is recorded by audio-visual means.

By whom should the statement be recorded?

As far as practicable, the statement must be recorded by a women police officer not below the
rank of a sub- inspector. She should not be in uniform when the statement is recorded. The
assistance of a qualified translator or interpreter can be taken while recording the statement.
The statement must be recorded in the presence of the parents or any other person in whom
the child trusts or has confidence.

What steps must the police take to protect the child?

While examining the child, the police officer investigating the case must ensure that the child
does not come in contract with the accused at any point. The identity of the child must also be
9
the protection of children from sexual offences act, 2012chapter vi procedures for recording statement of the
child

22
protected from the media unless the special court, in the interest of the child, directs
otherwise.

What measures must be taken to record the statement of a child with disabilities?

The police officer must seek the assistance of a qualified special educator or a person familiar
with the manner of communication of the child or an expert in that field, while recording the
statement of a child with mental or physical disability.

Recording of statement by the magistrate

How must the statement be recorded?

A magistrate recording the statement of a child under section 164 of the criminal procedure
must record it in the exact language spoken by the child. The statement must be recorded in
the presence of parents or any other person in whom the child trusts or has confidence. The
assistance of a qualified translator or interpreter can be taken while recording the statement.
The magistrate must also try and ensure that the statement is recorded by audio- visual
means. The magistrate must also provide the child and his or her parents or representative, a
copy of the police report on the matter.

What measures must be taken to record the statement of a child with disabilities?

The Magistrate must seek the assistance of a qualified special educator or a person
familiarwith the manner of communication of the child or an expert in that field, while
recording thestatement of a child with mental or physical disability.

Trial before the Special Court

All trials before the Special Court must be conducted in camera and in the presence of
the parents of the child or any other person the child trusts.

Examination, cross-examination, and re-examination

In the course of recording the examination-in-chief, cross-examination or re-examination, all

questions to the child by the Special Public Prosecutor or the counsel for the accused must be
communicated to the Special Court which must then put the questions to the child.

Recording of Evidence

23
The evidence of the child must be recorded within 30 days of the Special Court having taken
cognizance of the offence. If it is delayed, reasons will have to be recorded by the Special
Court explaining the delay. At the time of recording evidence, the Special Court will have to
ensure that the child is not exposed to the accused and also that the accused is in a position to
hear the statement of the child and communicate with his advocate. This can be done by
recording the evidence through video-conferencing or by using single visibility mirrors or
curtains.

Responsibilities of the Special Court

The Special Court must take the following measures while conducting the trial under the Act:

 If required, permit frequent breaks for the child during the trial.
 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.
 Ensure that the child is not called repeatedly to testify in court.
 Not allow aggressive questioning or character assassination of the child and ensure
that dignity of the child is maintained at all times.
 Ensure that the identity of the child is not disclosed at any time during the course of
investigation or trial. Such disclosure can be permitted it is in the interest of the child
after reasons are recorded in writing.
 Ensure that trial is completed, as far as possible, within one year from the date of
taking cognizance of the offence.

The Special Court can also order interim compensation to meet the immediate needs of the
child for relief and rehabilitation at any stage after registration of the FIR. Such an order
can be passed based on an application by or behalf of the victim or by the court on its own. It
can also recommend the award of compensation if the child has suffered loss or injury and
where the accused is convicted, discharged, acquitted, or is not traceable or identifiable. The
compensation awarded is payable by the State Government from the Victims Compensation
Fund or other schemes or funds established for the purpose of compensating and
rehabilitating victims under Section 357A of the Criminal Procedure Code. Such
compensation is payable within30 days of the receipt of the order.

Role of Commissions for Protection of Child Rights

24
Under the POCSO Act, the National Commission for Protection of Child Rights and the State
Commissions for Protection of Child Rights have been vested with the responsibilities of:

a) Monitoring the implementation of the provisions of the POCSO Act 2012, as per
the prescribed Rules. 

b) Conduct inquiries into matters relating to an offence under the Act.

c)Reporting the activities undertaken under the POCSO Act 2012, in its Annual Report.

The Commissions must monitor the designation of Special Courts, appointment of Public
Prosecutors, formulation of guidelines for use of NGOs, professionals and experts to be
associated with the pre-trial and trial stage, dissemination of information about the Act
through media to promote awareness among general public, children, parents and guardians.
The Commissions can also call for a report on any specific case of child sexual abuse falling
within the jurisdiction of a CWC. While inquiring into matters relating to an offence under
the Act, they can utilize the powers available to them under the Commissions for Protection
of Child Rights Act, 2005. Post-inquiry, they can recommend to the government to initiate
proceedings for prosecution, recommend interim relief, or make any other recommendations
to effectively redress the matter. They can also approach the high court or supreme court for
orders, directions, or writs.

The Act recognizes that the intent to commit an offence, even when unsuccessful forwhatever
reason, needs to be penalized. The attempt to commit an offence under the Act has been made
liable for punishment for upto half the punishment prescribed for the commissionof the
offence.

25
 THE ADVANTAGES OF PROCEEDING UNDER THE POCSO ACT
COMPARED TO THE INDIAN PENAL CODE (IPC)

 The IPC does not differentiate between adult and child victims whereas the POCSO
Act specifically deals with sexual offences committed against persons below 18, who
are deemed as children.
 The POCSO Act penalises sexual offences committed against both male and
female child victims whereas theIPC does not take into account rape committed on a
male child.
 The POCSO Act provides for the establishment of Special Courts for trial of offences
and incorporates child-friendly procedures for reporting, recording of evidence,
investigation and trial of offences. This is not the case with IPC. The Rulesmade
under the POCSO Act provide for award of compensation, including
interimcompensation, to a child victim on the basis of criteria such as loss of
education oremployment opportunities, as well as consequences suffered as a result of
the abuse such asdisease, disability and pregnancy.
 POCSO provides definitions of “penetrative sexual assault”, “sexual assault” and
“sexual harassment” — the offence is considered graver if it is committed by a police
officer, public servant, any member of the staff at a remand home, protection or
observation home, jail, hospital or educational institution, or by a member of the
armed or security forces.
 Intensity of penalties/ punishments under IPC- sexual offences against children carry
weaker penalties and punishments. It is considered a compoundable offence. Under
POCSO Act, sexual offences against children carry stronger penalties and harsher
punishments.

Unlike the IPC, which treats sexual intercourse by a man with his wife above the age of 15
years as an exception to rape, the POCSO Act does not permit any exception. In fact,
penetrative sexual assault and non-penetrative sexual assault by a person who is related to a
child through marriage constitutes an aggravated offence.10

10
 FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child
Rightshttp://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+Latest.pdf?
MOD=AJPERES&lmod=-580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055

26
A plain reading of the Act suggests that:

 Any person (including a child) can be prosecuted for engaging in a sexual act with a
child irrespective of whether the latter consented.

 A husband/wife can be prosecuted for engaging in a sexual act with his/her spouse
below the age of eighteen years.

 The Act does not recognise consensual sexual acts among children or between a child
and an adult.

Before the Act was passed, debates took place around the need to acknowledge and
decriminalise sexual behaviour of adolescents between 12-18 years11. The Act, however,
adopted a protectionist approach under the assumption that a uniform age of consent would
be in accordance with the UN Convention on the Rights of the Child, 1989. In effect, the Act
infringes upon the right to dignity and bodily integrity, freedom of expression, right to life,
and the right to privacy of adolescents engaging in consensual sexual behaviour.

In State v. Aas Mohammad12, a 14-year-old girl was in a sexual relationship with her
landlord. A complaint was filed by the mother on discovering that the girl was six months
pregnant. In court, the girl admitted that the matter was reported only because the man had
refused to marry her. During the proceedings, the accused offered to marry the girl, deposit a
sum of Rs 30,000 in her name, and provide shelter to her mother. The couple got married
when he was released on bail.  The judge ensured compliance with the undertaking and
acquitted the accused as the girl and her mother retracted their statements.

The above ruling give rise to conflicting questions – can an adolescent’s right to bodily
integrity, privacy, and life be disregarded if she is not married? Will marriage disentitle a girl
from being protected from sexual offences? Is the marital rape exception being implicitly
applied by the judges in POCSO cases? Are judges providing the accused an option to evade
conviction by sanctioning their offer to marry the victim? What would be in the ‘best interest
of the child’ in such cases?

11
Exception 1, Clause 3A of the National Commission for Protection of Child Rights (NCPCR)’s Protection of
Children from Sexual Offences Bill, 2010 stated: “(i) Any consensual non-penetrative sexual act penalized by
this chapter (except for sections 23, 25, 27 and 31) is not an offence when engaged in between two children who
are both over 12 years of age and are either of the same age or whose ages are within 2 years of each other.”

12
Decided on 13.8.2013 by Judge T.S. Kashyap. SC NO. 78/2013.

27
 COMMISSIONS UNDER THE POCSO ACT 2012

The National Commission for Protection of Child Rights (NCPCR) has been constituted by
the Government of India, Ministry of Women & Child Development as a statutory Body
under Section 3 of the Commissions for Protection of Child Rights (CPCR) Act, 2005 for
dealing with protection of Child Rights and related matters and to exercise the powers
conferred on and to perform the functions assigned to it, under this Act. Among the
functions, Section 13(1) of the Commissions for Protection of Child Rights (CPCR) Act,
2005, the Commission is to examine and review the safeguards provided by or under any law
for the time being in force or the protection of child rights and recommend measures for their
effective implementation. 3. The Government of India has India has enacted various
legislations so far for protection of children and the Juvenile Justice Act and the POCSO Act
are crucial legislations for ensuring protection rights of children. The Commission is required
to review, examine and monitor the implementation of these two legislations and recommend
policy interventions13.

More specifically under Section 44 of the Protection of Children from Sexual Offences Act,
2012 and Rule 6 of the same Act, the Commission is the designated authority to monitor its
implementation. The NCPCR has decided to constitute and Advisory Committee for Juvenile
Justice Act and POCSO Act comprising the representatives of Union Ministries (GOI), UN
Agencies, Non-Governmental Organisations, research institutions, Authorities and individual
experts to advise the Commission to pursue the above functions and mandates more
effectively.

Cases of child sexual abuse can be brought to the notice of the NCPCR through various
sources. For example, information may reach the NCPCR through print media and
newspapers, through NGOs, or through complainants approaching the Commission directly.
Such cases require monitoring by the NCPCR as well. In this regard, it is recommended that:

i. As far as possible NCPCR / SCPCR should try and follow a case till the
conclusion of the trial.
ii. For each case a Fact Sheet, Action Taken by NCPCR/SCPCRs and a Response
sheet should be prepared

13
Monitoring Guidelines for NCPCR/SCPCR
http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid

28
 iii. Monitoring of complaints received from agencies like NGOs, institutions, RWAs,
Unions etc. They require monitoring as they have not yet reached the criminal
justice functionaries. These have to be followed till they are registered as FIR's in
the police system. If they have not been registered, then it has to be examined why
not. Once the NCPCR/SCPCR has the information then regular updates of cases
can be automatically asked from the authority/ organization till the case reaches its
logical conclusion Also the role of State Legal Services Authority can be roped in
for giving legal and para legal help to the victim and family. The role of State
Commission can also be reviewed, and the good practices noted and shared.
iv. There should be separate monitoring system for the complaints received directly
by NCPCR/SCPCR
v. With regard to cases reported in the media, it is the duty of the Commission to
follow the case until FIR is registered. In case the FIR is not registered, the
reasons must be monitored by the Commission.

The NCPCR and all State Commissions have been given the onerous responsibility of
monitoring the implementation of the Protection of Children from Sexual Offenses Act 2012
under Section 44 of the Act and Rule 6 of the Central POCSO Rules. To take this mandate
forward, Monitoring Guidelines for the Police, Special Courts, and Special Prosecutors have
been prepared by Lawyers Collective Women’s Rights Initiative as a technical partner for
NCPCR with support from UNICEF. In order to conduct the exercise of Monitoring and
Evaluation, NCPCR or SCPCR are mandated to systemize the process of data collection by
compiling information from the implementing agencies functioning under the Act.
Questionnaires, which correspond with the duties and statutory obligations of the agencies,
can be used to collect data. Accordingly, the data collected can be contextualized and
evaluated by any concerned person to gauge the effectiveness, efficiency and impact of
measures taken to implement the Act. These Monitoring Guidelines contain questions for
monitoring the fulfilment of roles of the stakeholders under the Act. The purpose of
providing monitoring questions for stakeholders is to increase efficiency in service delivery
and prevent instances of child sexual abuse. The list of monitoring questions provided at the
end of each chapter can be used for quarterly collection of data by the NCPCR, which can be
compiled to form the Annual Report under section 44 (3) of the POCSO Act. Under Section
44 of the Protection of Children from Sexual Offences(POCSO)Act and Rule 6 of POCSO

29
Rules, 2012, the National Commission for Protection of Child Rights, in addition to its
assigned functions, also mandated14:

1. To monitor in the implementation of Protection of Children from Sexual Offences

(POCSO) Act, 2012;

2. To monitor the designation of Special Courts by State Governments;

3. To monitor the appointment of Public Prosecutors by State Governments;

4. To monitor the formulation of the guidelines described in section 39 of the Act by the
State Governments, for the 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, and to monitor the application of these guidelines;

5. To monitor the designing and implementation of modules for training police

personnel and other concerned persons, including officers of the Central and State
Governments, for the effective discharge of their functions under the Act;

6. To monitor and support the Central Government and State Governments for the
dissemination of information relating to the provisions of the Act through media
including the television, radio and print media at regular intervals, so as to make the
general public, children as well as their parents and guardians aware of the provisions
of the Act;

7. To call for a report on any specific case of child sexual abuse falling within the
jurisdiction of a CWC;

8. To collect information and data on its own or from the relevant agencies regarding
reported cases of sexual abuse and their disposal under the processes established
under the Act, including information on the following: -

 Number and details of offences reported under the Act.

 Whether the procedures prescribed under the Act and rules were followed,
including those regarding timeframes

14
The National Commission for Protection of Child Rights (NCPCR) http://www.ncpcr.gov.in/index1.php?
lang=1&level

30
  Details of arrangements for care and protection of victims of offences under
this Act, including arrangements for emergency medical care and medical
examination and

 Details regarding assessment of the need for care and protection of a child by
the concerned CWC in any specific case.

9. To assess the implementation of the provisions of the Act and to include a report in a
separate chapter in its Annual Report to the Parliament.

OBJECTIVES OF THE MONITORING GUIDELINES FOR THE

POLICE AND JUDICIARY

The objectives of the Monitoring Guidelines for the Police are:

 Identifying the roles and responsibilities of the Police with regard to recording
information under section 19, recording an FIR, recording the statement of the child
and extending care and protection to the child.
 Identifying indicators for assessing the response of the police to child survivors.

The objectives of the Monitoring Guidelines for the Judiciary are:

 Identifying the judicial functionaries under the Act and their roles and
responsibilities- including dealing with a police report, procedure for bail / remand of
an accused, procedure for recording the statement of the child, and principles for trial
in a Special Court.
 Identifying indicators to assess the response of the judiciary to child survivors.

The objectives of the Monitoring Guidelines for Special Prosecutors are:

 Identifying the roles and responsibilities of Special Prosecutors under the Act
including dealing with a private complaints case, dealing with a closure report, hostile
witnesses and role of legal aid.
 Identifying indicators to assess the response of the Special Prosecutors to child
survivors. In the Monitoring Guidelines, clarifications of the scope of the POCSO Act
and promoting the best interest of the child are primary objectives.15
15
Model Guidelines under Section 39 of The Protection of Children from SexualOffences Act, 2012, Ministry of
Women and Child Development, September 2013<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.

31
 INSTRUMENTS AND STANDARDS FOR PROTECTION OF CHILD
RIGHTS

CONSTITUTION OF INDIA

The Constitution of India recognises the vulnerable position of children and their right to
protection. Following the doctrine of protective discrimination, it guarantees in Article 15
special attention to children through necessary and special laws and policies that safeguard
their rights. The Right to Equality, Protection of Life and Personal Liberty and the Right
against Exploitation are enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e)
and 39(f) of the Constitution and reiterate India’s commitment to the protection, safety,
security and wellbeing of all its people, including children. Here is what the relevant Articles
say16:

Article 14: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.

Article 15: The State shall not discriminate against any citizen on grounds of only religion,
race, caste, sex, place of birth or any of them.

Article 15(3): Nothing in this Article shall prevent the State from making any special
provision for women and children.

Article 19(1)(a): All citizens shall have the Right (a) to Freedom of Speech and Expression.

Article 21: Protection of Life and Personal Liberty: no person shall be deprived of his life or
personal liberty except according to procedure established by law.

Article 21A: Free and compulsory education for all children from the age of 6 to 14 years.

Article 23: Prohibition of traffic in human beings and forced labour: Traffic in human beings
and beggars and other similar forms of forced labour are prohibited and any contravention of
this provision shall be an offence punishable in accordance with law.

16
Child rights: A Handbook for Journalists- UNICEF Unite for children

32
Article 24: Prohibition of employment of children in factories, etc.: No child below the age
of 14 years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.

Article 39: The State shall, in particular, direct its policy towards securing:

(e) that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter vocations
unsuited to their age or strength,

(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

INTERNATIONAL CONVENTIONS AND DECLARATIONS

India is a signatory to a number of international instruments and declarations pertaining to the

rights of children to protection, security and dignity. It acceded to the United Nations
Convention on the Rights of the Child (UNCRC) in 1992, reaffirming its earlier acceptance
of the 1959 UN Declaration on the Rights of the Child, and is fully committed to the
implementation of all provisions of the UNCRC. In 2005, the Government of India accepted
the two Optional Protocols to the UNCRC, addressing the involvement of children in armed
conflict and the sale of children, child prostitution and child pornography. India is
strengthening its national policy and measures to protect children from these dangerous forms
of violence and exploitation. India is also a signatory to the International Convention on Civil
and Political Rights, and on Economic, Social and Cultural Rights which apply to the human
rights of children as much as adults. Three important International Instruments for the
protection of Child Rights that India is signatory to, are:

The Convention on the Rights of the Child (CRC) adopted by the UN General Assembly
in 1989, is the widely accepted UN instrument ratified by most of the developed as well as
developing countries, including India. The Convention prescribes standards to be adhered to
by all State parties in securing the best interest of the child and outlines the fundamental
rights of children, including the right to be protected from economic exploitation and harmful

33
work, from all forms of sexual exploitation and abuse and from physical or mental violence,
as well as ensuring that children will not be separated from their families against their will.

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) is also applicable to girls under 18 years of age. Article 16.2 of the Convention
lays special emphasis on the prevention of child marriages and states that the betrothal and
marriage of a child shall have no legal effect and that legislative action shall be taken by
States to specify a minimum age for marriage.

The SAARC Convention on Prevention and Combating Trafficking in Women and

Children for Prostitution emphasizes that the evil of trafficking in women and children for
the purpose of prostitution is incompatible with the dignity and honour of human beings and
is a violation of basic human rights of women and children.

ILO Worst Forms Convention 182 (C182), 1999 calls for international spotlight on the
urgency to initiate immediate and effective measures to prohibit and eliminate the “worst
forms of child labour”, which are (a) all forms of slavery and slavery-like practices, such as
child trafficking, debt bondage, and forced labour, including forced recruitment of children
into armed conflict; (b) using a child for prostitution or the production of pornography; (c)
using a child for illicit activities, in particular drug production and trafficking. Child applies
to all persons under the age of 18 years.17

CRITICAL ANALYSIS ON POCSO ACT

17
http://unicef.in/Uploads/Publications/Resources/pub_doc20.pdf

34
‘Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of
the soul’

-Dave Pelzer

As we know the crime involving sexual offences have risen to a drastic level since the last
two decades not only sexual offences are more brutal but also have become life threatening.
As much as the fact prevails that such shameful crimes see no gender or age the truth still
remains that the children are more vulnerable to such crime because of the obvious reason
that they can’t stand for themselves most of the times they are threatened and sometimes they
are also unable to understand what havoc has been done to them. The innocent children can
only feel the pain of the mishappening leaving a scar over the soul and body forever.
Recognizing the vulnerability of children the of provisions of law for the sexual crime against
children and realizing the trauma with which the society has to suffer if such law is not
worked out.

There are various objections to the following provisions of the POCSO Act which are
considered to be not in conformity with natural justice and are biased towards the child or any
other person who makes a complaint on behalf of child (accuser) but could be detrimental to
the interest of an adult person against whom complaint has been filed (accused).

 Under Section 22(1) of the POCSO Act, any person who make a false complaint or
provides false information against any person in respect of an offence committed
under section 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 time which may
extend to six months or with fine or with both.
Comparing this with the punishment and fine on the person who has been implicated
(accused) by the person mentioned in the above para (accuser). The person who is
implicated under section 3/section 5 of this Act shall be punished with imprisonment
which shall not be less than 7 years/10years and may extend to imprisonment for life
and shall also be liable to fine.
The person who is implicated under section 7/section 9 of this Act shall be punished
with imprisonment which shall not be less than 3 years/5 years and may extend to 5
years/7 years and shall also be liable to fine. If one compares the punishment being
given to the person who has been implicated and to the person who is falsely

35
 implicating that person, it is very clear that the person who is implicating (accuser) is
at an advantageous place than the person who is implicated (accused).
If the person who make a false allegation is successful due to miscarriage of justice
than he is free and even if it is proved that he has committed an offence of falsely
implicating the other person then he will be behind bars maximum of 6 months.
 Section 22 (2) provides that when a false complaint has been made or false
information has been provided by a child no punishment shall be imposed on such a
child.
How is this justified that no punishment is provided for the child who can ruin the life
of an adult by making a false complaint. It is a known fact that child can be
manipulated by his parents, guardians and others for their nefarious designs. The child
can be used as a pawn by someone to defame anyone without any implications for
him/her. This Act provides that his/her identity will be protected at all stages of the
court proceedings, but this is not for the person who has been implicated. We all have
heard the phrases “please do not talk like a child” or “why are you behaving like a
child”. Which shows or proves the point that utterances of a child cannot be taken
seriously and have to be taken with a pinch or handful of salt, depending on his/her
behavior or character of that child. But in the case of “POCSO” law “The child is
being made father of any adult and can threaten anyone with the help of this Act” and
no one can do anything about it.
 The section 19(7) provides that no person shall incur any liability civil or criminal, for
giving information in good faith for the purpose of sub section(1). What happens
where intention of the accuser is to ruin the reputation of the accused? The Act
appears to be in favour of the accuser.
When a false complaint has been made or false information has been provided by a
child or any complainant than proportionate punishment should be imposed on child
or on such a complainant.
 Section 29 provides where a person is prosecuted for committing or abetting or
attempting to commit any offence under section 3, 5, 7 or 9 of this Act, the special
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. The court will presume
one to be guilty of an offence that have not been committed and onus is on the person
to prove that he has not committed the offence. In most of other laws the onus is on

36
 the person who has alleged that something wrong has been committed on him/her to
prove his/her case. This makes it very difficult for the person who has been alleged /
accused to have committed any offence under the section 3,5,7 or 9 that he or she is
innocent. In these cases, generally there is no eye witness. It is a claim of a child
against an adult which is denied by the adult. If there is any medical evidence in
support of the child then it is different, if there is no medical evidence in support of
the child the case will be decided on circumstantial evidences. This is where the
difficulty arises as the courts have been made to presume that an offence has been
committed which may not be the case in case of false allegations.
 Section 30 of the Act provides that for any offence under the Act which requires
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
beyond reasonable doubt the fact that he had no such mental state with respect to the
act charged as an offence in that prosecution. If a person has been falsely implicated
by someone or if a person has committed an act of sexual assault for the first time,
how can courts presume that such person is having culpable mind.
 Section 34(2) provides that the age of the child will be decided by the court and shall
record its reasons for such determination. Section 34(3) provides that no order made
by the special court shall be deemed to be invalid by any subsequent proof that the
age of the person as determined by it under sub section (2) was not the correct age of
the person. This clearly shows that the child who is alleging that something wrong has
happened with him or her may or may not be minor. What is difficult to comprehend
is the fact that if court has come to a wrong conclusion on the age of a minor and it is
proved that he or she is major even then the decision of the court will not be changed.
This is against the principle of natural justice. Is this fair in any way to the accused,
again it is advantage to the accuser that he or she can manipulate the age and can get
away with it as there is no punishment for the child and if child is proved to be major
it is not more than 6 months of imprisonment or with fine or both.
 The provisions of section 3 to 13 (both inclusive) shall not apply in case of medical
examination or medical treatment when such medical examination or treatment is
done with the consent of parent or guardian. For instance, a child is injured while
playing football or cricket in groin region, will the coach or elder person will have to
wait for his parents to give consent before he/she does examination of the child

37
 private parts. Another example a girl child is hit in her breast area again the elder
person cannot do anything to help her as he or she has wait for parental consent to do
such examination, otherwise he will be implicated under this Act and may end up in
jail for 3-5 years.If a girl child is dying and needs artificial respiration and revival, no
malewill touch her as she has fainted and the person has to touch her breast area to
revive her, than that person will have to wait, if her parents are not around to give
consent for the same.
The law makers could have foreseen these situations of medical exigencies and could
have entered the words “the provisions of section 3 to 13 of POCSO Act shall not
apply in case of medical exigencies, in that case consent of parents is not required to
save the life of any child”. 18

NEED OF THE POCSO ACT

 The POCSO Act was introduced to fill in the shoes of existing law (IPC, it Act, 2000
and Juvenile Justice Act 2000) as there were not enough to address the sexual
offences.
 The pre-existing laws have no provision to deal with sexual abuse of male children.
 Age of child (controversy of age in POCSO and Juvenile Justice Act)
The POCSO Act defines a child as any person below the age of 18 years. Whereas the
juvenile justice Act which was introduced after the heated Nirbhaya rape case the
matter in controversy was -whether the juvenile among the other rapist should be
punished alike or not. After a huge discussion, it was concluded that and then the age
of the juvenile was to be reduced from 18 to 16.
But the clash has been resolved by the police through classifying the case registered is
either cognizable or non-cognizable. If the child (below 18) has committed an offence
which is cognizable then here the punishment will be given same as that of an adult
and if the offence is non-cognizable then the accused if (below 18) shall not be
punished as an adult and shall be treated a child as mentioned in POCSO ACT.

CASES REPORTED & DEALT UNDER POCSO ACT, 2012

18
ashram.org/PressReleases/ArtMID/1906/ArticleID/2907/the-pocso-law-has-been-and-can-be-misused-to-
frame-any-person

38
 1. Nishu v. Commissioner of Police, Delhi and Ors. 201419

Petitioner is a minor who was kidnapped on 25.10.2013 by a group of nine persons who
had kept her confined up to 8.11.2013. The accused persons, in different combinations,
had repeatedly raped her and that one of the accused, named, Pradeep is a constable in
Haryana Police. After being recovered, medical examination of the girl was done, but
neither the copy of the report was not furnished nor any FIR under Section 376 D of the
Indian Penal Code or the provisions of the POCSO Act registered against the accused
persons. Petition under Article 32 has been filed seeking directions from the Court for
registration of FIR under above mentioned sections; for the arrest of the accused.
Appropriate action has to be taken against the officers of the Delhi and Haryana police by
way of departmental proceedings for their refusal/failure to register the FIR under IPC as
well as POCSO Act, 2012. In view of the arguments asserted by the counsels of both the
respondents, court held that no order or direction to the first Respondent would be
justified in view of the fact that the case has been registered by the Haryana Police and
has been investigated by the authorities of the State of Haryana. Findings: The Hon’ble
Court also finds that as the charge sheet has been filed against all the nine accused and the
trial has commenced in the meantime it will be wholly inappropriate to exercise their
jurisdiction under Article 32 of the Constitution.

2. Ashish Kumar & others. Vs. State of U.P & others20

FIR was lodged by the victim's father Deesaa Police Station at P.S. Rauja, district
Shajahanpur under sections 147, 354 A, 352, 323 and 506 of IPC and Sections 7/8 of
POCSO act , 2012. After investigation, the police laid charge-sheet under Sections 352,
323 and 506 IPC only. As a result, Victim’s father filed an affidavit alleging therein that
on the date of the incident that is 30th October, 2014, the victim's age was about 16 years
and as she had alleged molestation, etc. in her statement, offences punishable under
sections 147 and 354A of IPC and sections 7/8 of POCSO Act were also made out. Upon
receiving such affidavit, the learned Magistrate perused the police report and passed the
impugned order dated 19.03.2015 thereby directing return of the charge-sheet for being
laid before the Special Court constituted under POCSO Act. In the order impugned, it was
19
Nishu v. Commissioner of Police, Delhi and Ors. 2014 (3) ACR 2516 (SC) P. SATHASIVAM C.J.I.,
RANJAN GOGOI N.V. RAMANA, JJ.
20
Ashish Kumar and Ors. v. State of U.P. and Ors. MANU/UP/0439 /2015 MANOJ MISRA, J.

39
 observed that from the material available in the case diary offences punishable under
Sections 323, 353, 354 and 506 IPC and Sections 7/8 of POCSO Act were prima facie
made out, but as it was not empowered to take cognizance of the offences punishable
under the POCSO Act, therefore, the charge sheet is to be returned for presentation before
the Special Court. Court observed that, as the instant matter arises out of case which is
based on a police report and not on the complaint, after submission of the charge-sheet,
the matter goes to the Magistrate for forming an opinion as to whether it is a fit case for
taking cognizance and committing the matter for trial or not. The Magistrate cannot
exclude or include any section into the charge-sheet after investigation has been
completed and charge-sheet has been submitted by the police. The same would be
permissible by the trial court only at the time of framing of charge under Sections 216,
218 or under Section 228 Cr.P.C as the case may be, which means that after submission
of the charge sheet it is open for the prosecution to contend before the appropriate trial
court at the stage of framing of charge that on the given state of facts the charge of certain
other offences should also be framed. Findings The Hon’ble High Court held that in a
case which is triable by a Court of Session though the Magistrate could not add or alter a
charge but he is empowered under sections 209 and 323 of the Code to commit the case
to a Court of Session. Since under Section 31 of the POCSO Act, a Special Court
constituted under the said Act is deemed to be a Court of Session, the Magistrate, if he
finds that offences triable by a Special Court under the POCSO Act are also made out, he
is empowered to commit the case to the Special Court by taking aid of the provisions of
section 209 of the Code. But such commitment arises after the Magistrate takes
cognizance of the offences laid in the charge sheet.

CONCLUSION

There can be no keener revelation of a society’s soul than the way in which it treats its
children.

40
 -Nelson
Mandela

Twenty-four months after the Protection of Children from Sexual Offences (POCSO) Act,
2012, came into effect, the noble intentions and the beneficial provisions of the Act are yet to
touch the lives of many affected children. Every few years a piece of progressive legislation
takes shape, only to be let down by those in charge of implementation.POCSO is not just
another law defining offences and prescribing punishments like the IPC. It is an enabling
legislation that mandates child friendly procedures in reporting offences, recording victim’s
statements, trial proceedings in special courts, and counselling. Unfortunately, the trauma of
children seems not to move our lethargic state governments, who often require a hard dose of
public protests and negative press to do the right thing. It appears that our State has lost its
capacity to feel in the daily grind of transacting government business thegoal of making the
world a better place to live in has been forgotten. nothing else can describe the POCSO
failure.

In December, the Supreme Court took exception to thefailure of many state governments to
implement POCSO provisions like setting up special courts in all districts, staffing state child
rights commissions to effectivelymonitor POCSO implementation, and framing rules to
befollowed by police and other stakeholders in child abusecases. In September, the women
and child development ministry had framed model guidelines to helpstates implement
POCSO better. An exhaustive andforward-looking document, the model guidelines will help
stakeholders,like,police,personnel,medical,professionals, psychologists, counsellors, social w
orkers, lawyers and judges in interviewing child victims. Till date, only 18 states have set up
special children’s courts. The need for POCSO was felt after surveys showed a high number,
40 to 50 per cent ofrespondents, complaining of sexual abuse as children. Even before the
Verma committee, constituted after the December 16 gang-rape, suggested changes in the
definition of rape, POCSO had taken the lead.In the first months of POSCO, policemen,
blissfully unaware of the law, continued to registeroffences under the IPC. While that
situation has somewhat changed, confusion still persistsabout charging offenders under the
correct sexual assault category. Today, most functionariesassume their responsibility is
complete by charging the accused under POCSO. 21 Thedeterrence value of POCSO does not
emanate from the harshness of its punishments. Thefavourable environment created for

21
The Protection of Children from Sexual Offences (POCSO), Neha Gupta, N.K.Aggarwal & M.S. Bhatia, Delhi
Psychiatry Journal, Vol. 16 No. 2 (October 2013)

41
children and families to report crimes and cope with thevagaries of the trial stage is the heart,
soul, and muscle of the POCSO Act.

There is hope that if the new law results inmore prosecutions, then more victims will be
encouraged to report their abuse, and potentialattackers will be deterred from abusing
children. It is essential that the law is understood andrespected by police officers, government
officials, and courts across the country. It will be the job of the national and state
commissions for the protection of child rights to oversee this, andso it is essential that they be
given sufficient resources and manpower. The government alsoneeds to draw up appropriate
training programs.22

Summing up, we need to consolidate our efforts and focus our energies on existing laws and
not look to amending more laws and making still further newer laws, alien to our culture,
society, habits, life styles and harsh realities of the common man. In so far child sex abuse is
concerned, POCSO is a wholesome law. The Government must create the machinery to
implement it and educate its officers besides all stake holders on what it contains. The
remedy to handle the public outcry is by implementing POCSO. All child offenders must be
charged, tried and punished in accordance with POCSO expeditiously. Speedy, stringent and
relentless pursuit of POCSO is the remedy and a possible cure. The State must not waste its
time in exploring alternatives when the answers exists in a law made by Parliament for these
special offences against children, the most vulnerable section of society. Today’s children are
tomorrow’s future.

SUGGESTIONS

22
Child Welfare: A critical analysis of some of the socio-legal legislations in India,Prof. Shilpa Khatri Babbar,
IOSR Journal of Humanities And Social Science, Volume19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

42
Although the state is required to give wide publicity to the Protection of Children from
Sexual Offences Act, the law is relatively unknown even to those who need to apply it. Amid
the public outcry raging on the streets over instances of rape of children across the nation, the
victimised and abused child suffers in silence. Traumatised, dejected and horrified family
members of the unfortunate victims find themselves helpless, confused and unable to cope in
the aftermath of the heinous crime.

Even though on May 22, 2012, Parliament passed the Protection of Children from Sexual
Offences Act, 2012 (POCSO), this special law remains an unimplemented law, unknown to
most and beyond the reach of those who need to apply it. There are demands for stiff
penalties, expeditious new laws and fast-track courts although POCSO, as a wholesome law,
already says it all.

Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with
sexual offences against children as the law did not make a distinction between an adult and a
child. POCSO provides for relief and rehabilitation as soon as the complaint is made to the
Special Juvenile Police Unit or the local police, who are required to make immediate
arrangements for care and protection. The intent to commit an offence, as defined under
POCSO, is also punishable, besides abetment of sexual abuse against a child.

Special emphasis has been placed on ensuring the speedy disposal of trials in special
children’s courts as well as following of special procedures to keep the accused away from
the child at the time of testifying.

Despite POCSO enjoining the Central and State governments to take measures for giving
wide publicity through the media — television, radio and print — and imparting periodic
training to all stakeholders on the matters relating to implementation of POCSO’s provisions,
the Act is relatively unknown. Shockingly, in the most recent rape case, the Delhi Police
included the Act’s provisions in the FIR reportedly after two days of its filing on April 15,
2013. In the infamous Apna Ghar Rohtak shelter home case of May 2012, where over 100
inmates were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still
not been invoked against the accused.

The passing of the salutary law is more than significant for a variety of reasons. It defines
exclusively the crime of sexual offences against children and fulfils the mandatory
obligations of India as a signatory to the United Nations Convention on the Rights of The
Child, acceded to on December 11, 1992.

43
For monitoring and implementation of the provisions of POCSO, the Act enjoins that the
National Commission and State Commissions for Protection of Child Rights constituted
under the Commissions for Protection of Child Rights Act, 2005, shall ensure the effective
implementation of the provisions of POCSO. The Supreme Court had, in a hard-hitting
directive issued on February 7, 2013, ordered all States to ensure that the regulatory and
monitoring bodies are constituted and made functional. However, till date, such Commissions
are either only partially-functional or effectively non-functional.

Acting upon a petition by the National Commission for Protection of Child Rights (NCPCR),
the High Court, in a path-breaking judgment rendered on April 9, 2013, directed Punjab,
Haryana and Chandigarh to ensure that State Commissions for Protection of Child Rights
become fully functional, are headed by a person who has been a Judge of the High Court, and
that chairpersons and members are appointed through a transparent selection process.

The High Court further directed mandatory registration of all children’s homes, constitution
and notification of children’s courts and appointment of special public prosecutors besides
ordering the setting up of a proper panel to select members of various committees to be set up
for child welfare.

Hence, the entire machinery for monitoring child rights has been galvanised. It has also been
ordered that the National Commissions and State Commissions shall start implementing
POCSO’s provisions while discharging their functions and that modules/training programmes
be initiated in the Chandigarh Judicial Academy to sensitise all stakeholders on child rights
and deal with cases in Children’s Court.

It is now for the State governments to implement this beneficial mandate and create an
effective machinery to check heinous crimes of gross sexual abuse against children.The
Justice Verma Committee Report, in one of its conclusions on child sexual abuse, holds that
“there is an urgent need to audit the performance of all institutions of governance and law and
order”.

We need to consolidate our efforts and focus our energies on existing laws rather than
looking to amend more laws and making still further newer laws, alien to our culture, society,
habits, lifestyles and harsh realities of the common man. Insofar as child sexual abuse is
concerned, POCSO is a wholesome law. The government must create the machinery to
implement it and educate its officers besides all stakeholders on what it contains.

44
The state must not waste time exploring alternatives when the answers exist in a law made by
Parliament for these special offences against children, the most vulnerable section of
society.23

SOME OF THE RECOMMENDTIONS ARE AS FOLLOWS:

1) Periodical review must be conducted in order to check the effectiveness and

implementation of the POCSO Act.

2) The police have a crucial role to play in combating child sexual abuse as they are the first
point of contact for anyone initiating the criminal case, the sensitivities required for this role
are recognized in the POCSO Act and so it is desired that they are strongly adhered to.

3) Prioritize execution of various child protection schemes and ensure that states rightly
utilise the funds allocated to them to create effective child welfare facilities

4) Ensure sufficient resources for statutory bodies and other responsible organizations like the
National commission for the protection of child rights to monitor the effectiveness of the
child protection legislations

5) There is a need to create greater awareness of the POCSO Act amongst adults, parents,
caregivers, teachers and people in positions of authority.

6) Executive authorities and statutory watchdogs at all levels also need to be sensitized and to
build their capacities.

7) The members of the judicial institution can richly contribute towards strengthening the
implementation of this legislation and ensuring the operation of an efficient, fair and child
sensitive justice mechanism.

8) The states must consent to reserve sufficient numbers for child help lines across the
country and I would like to call upon all the states to take efforts to implement the same to
ensure that the child’s safety and security is of prime importance.

9) To prevent repeated crimes, companies can adopt safer recruitment policies ensuring that
convicted offenders are temporarily or permanently prevented from getting jobs involving
regular contact with the children.

23
http://www.thehindu.com/opinion/op-ed/strong-provisions-weak-implementation/article5470778.

45
10) In order to teach online safety in schools we need the involvement of teachers and parents
and make sure they deliver their promise and help the children learn about the risks which
they may encounter online and in case they face any problems how to tackle them.

11) By giving a patient hearing to the views of the youngsters and continue their effort to
create awareness.

12) Though fast track courts have been established there is a need to sanction more judges for
such courts in order to speedily dispose of the cases.

13) Introduction of sex education in the school curriculum can go a long way in reducing
crimes against children because it is felt that comprehensive sex education could help
youngsters resist social pressure and say no to exploitation.

14) Government should launch programmes and conduct child sex abuse awareness through
street plays, literacy camps, radios, posters etc. and through workshops as well in all the
schools across the country.

BIBLIOGRAPHY

PRIMARY SOURCES

1. Protection of Children from Sexual Offences (POCSO) Act, 2012

2. The Indian Penal Code, 1860, Bare Act
3. Juvenile Justice Act

46
 BOOKS

1. The Juvenile Justice (Care and Protection of Children) Act 2015 - Critical Analysis by
ved kumari
2. Criminal law by K.D.Gaur
3. Andrade C, Rao TSS Childhood sexual abuseand the law by pratap malik

WEBSITES
1. www.LegalServiceIndia.com
2. www.thehindu.com
3. www.ncrb.gov.in
4. www.indiankanoon.org

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