SUBMITTED TO- PEOPLE UNION FOR CIVIL

LIBERTY
MAYUR VIHAR, NOIDA

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

ABSTRACT
Children are the greatest gift of humanity and their sexual abuse is one of the most heinous
crime. Since, this is a secret form of abuse, often causing victims to suffer in dark and silence.
The child sexual abuse is an under-reported offence in India, which has reached epidemic
proportion. Child Sexual Abuse is a pyshical or pscyological maltreatment of a child and can
be classified under four categories, pyshical abuse, emotional abuse , neglect and worst of all,
the sexual abuse. It is estimated that about 53% of children in India face some form of child
sexual abuse. The health and security of the countrys children is integral to any vision for its
progress and development.
Child Sexual Abuse (CSA) has only recently been publicly acknowledged as a problem in
India. A welcome development had been the enactment of a special lawProtection of
Children against Sexual Offences (POCSO) 2012 criminalising a range of acts including
child rape, harassment, and exploitation for pornography.
The law mandates setting up of Special Courts to facilitate speedy trials in CSA cases. The
paper highlights the intended benefits and the unintended consequences that might arise from
the application of the law in the Indian context. Undoubtedly, the passing of POCSO has been
a major step forward in securing childrens rights and furthering the cause of protecting
children against sexual abuse in conjunction with a related legislation to clamp down on child
marriages called the Prohibition of Child Marriage Act 2006. The letter and spirit of the law,
which defines a child as anyone under 18 years of age, is to protect children from sexual
abuse. However, criminalising all sexual behaviour under 18 years of age can be problematic.
This paper will focus on child sexual abuse, laws, loopholes and Protection of Children
against Sexual Offences (POCSO) 2012 and identifies three main issues arising from
POCSO: age of consent, age determination, and mandatory reporting; issues that highlight the
fact that well-meaning laws can nevertheless have unintended negative consequences.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

TABLE OF CONTENT
S.No

Topic

Page Number

1.

Introduction

2.

CSA in India

5-6

3.

Legal Response to CSA

6-7

4.

Legal Loopholes

7-8

5.

Overview of POSCO A ct

9-11

6.

General Principles

11-12

7.

Basic Guidelines-Conducting
Forensic Interview

13-14

8.

Challenges And Controversies

15-16

9.

3 Main Issues arising from

POSCO

16-17

10.

Important Case Laws

18-29

11.

Summary

30

12.

Conclusion

31

13.

Biblography

32

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

INTRODUCTION
India is second populous country in the world and latest census 2011 reveals that its a home of 17%
of the world's population. Nearly nineteen percent of the world's children live in India, which
constitutes 42 percent (more than one third) of Indias total population and around 50 percent of these
children are in need of care and protection 1 .Despite having highest number of sexually abused
children in the world, there is no special law in
India which is fully equipped to counter the menace.
Protection of children against sexual offences Act, 2012 (POCSO) is a special Law to protect children
from offences against sexual assault, sexual harassment and pornology remains an unimplemented
law, unknown to moot and beyond knowledge or information of those who apply it.
Historically, child sexual abuse (CSA) has been a hidden problem in India, largely ignored in public
discourse and by the criminal justice system. Until recently, CSA was not acknowledged as a criminal
offence; rape was the main, if not the only, specific sexual offence against children recognised by law
in India.
In the absence of specific legislation, a range of offensive behaviours such as child sexual assault (not
amounting to rape), harassment, and exploitation for pornography were never legally sanctioned. In
the past few years activists, Non-Governmental Organisations (NGOs) and the central governments
Ministry of Women and Child Development have actively engaged in helping break the conspiracy of
silence (HRW 2013) and have generated substantial political and popular momentum to address the
issue. The movement, spearheaded by the Ministry of Women and Child Development, led to the
enactment of new legislation called the Protection of Children from Sexual Offences (POCSO) 2012.
The child sexual abuse is an under-reported offence in India, which has reached epidemic proportion.
A study on prevalence of sexual abuse among adolescents in Kerala, reported that 36 per cent of boys
and 35 per cent of girls had experienced sexual abuse at some point of time.
A similar study conducted by the Government of India in 17,220 children and adolescents to estimate
the burden of sexual abuse revealed shocking results and showed that every second child in the
country was sexually abused; among them, 52.94 per cent were boys and 47.06 per cent were girls.
Highest sexual abuse was reported in Assam (57.27%) followed by Delhi (41%), Andhra Pradesh
(33.87%) and Bihar (33.27%).
Sexual abuse and sex trafficking remain highly prevalent and are among the serious problems in India.
In the last two decades, an increase in the prevalence of sexually transmitted diseases has been shown
in children. Children who are victims of sexual abuse often know the perpetrator in some way.Hence,
the problem of child sexual abuse needs to be addressed through less ambiguous and more stringent
punishment.
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was formulated to effectively
address the heinous crimes of sexual abuse and sexual exploitation of children. Legal provisions were
made through implementation of the Criminal Law (amendment) Act, 2013 which amended the Indian
Penal Code, the Code of Criminal Procedure, 1973, The Indian Evidence Act, 1972, and the
Protection of Children from Sexual Offences Act, 2012. This Criminal Law (Amendment) Act 2013,
also dictates punishment on stalking, voyeurism, disrobing, trafficking and acid attack.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

CSA in India
CSA remains a taboo but its a very real problem in India, and the situation is aided by the absence of
effective legislation and the silence that surrounds the offence. Majority of people feel this is a largely
western problem and does not happen in India. Growing concerns about female infanticide, child
rapes and institutional abuse of children led to the commissioning of the first large scale government
sponsored research study to assess the extent and nature of child abuse in India .
Statistics:
According to WHO, one in every four girls and one in every seven boys in the world are sexually
abused. Virani (2000) states, the WHO found that at any given time, one of ten Indian children is
the victim of sexual abuse. But Lois J. Engel Recht, a researcher quotes studies showing that over 50
per cent of children in India are sexually abused, a rate that is higher than in any other country.
Extent of the Problem:
Reliable estimates are hard to come since this is a furtive form of abuse,often causing victims to suffer
in dark and claustrophobic silence. To find out the extent of child abuse in India, The first ever
National Study on Child Abuse was conducted by The Ministery of Women and Child Development
covering 12447 children, 2324 young adults and 2449 stakeholders across 13 states.
In 2007 it published the report as "Study on Child Abuse: India 2007. The survey, covered different
forms of child abuse i.e. physical, sexual and emotional as well as female child neglect, in five
evidence groups, namely, children in a family environment, children in school, children at work,
children on the street and children in institutions. brought out some shocking facts, and its main
findings in relation with sexual abuse are:
Sexual abuse was reported by 53.22% children. Among them 52.94% were boys and 47.06% girls
21.90% of child respondents faced severe forms of sexual abuse, 5.69% had been sexually assaulted
and 50.76% reported other forms of sexual abuse.

AP, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both
sexes, as well as the highest incidence of sexual assaults.

The highest incidence of sexual assault was reported in children on street, at work and in
institutional care.

50% abusers were known to the child or in a position of trust and responsibility.

Most Children did not report the matter to anyone.

More than 53% children report facing one or more forms of sexual abuse and boys were
equally at risk as girls.

Almost 22% faced severe sexual abuse, 6% sexually assaulted.

50% of sexual offenders were known to the victim or were in positions of trust (family
member, close relative, friend or neighbour).

5-12 years group faced higher levels of abuse, largely unreported.

Severest sexual abuse in age group of 11-16 years, 73% of sexual abuse victims were in age
groups of 11- 18years.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

The age wise distribution showed that though the abuse started at the age of 5 years, it gained
momentum 10 years onward, peaking at 12 to 15 years and then starting to decline.

Another study on child abuse in Kolkata, Elaan, an NGO, found that four out of 10 boys faced
sexual harassment in school. Generally the age of maximum abuse is between 9 to 12 years.
The national study found that the abuse gained momentum at the age of 10 and peaked
between 12 to 15.

Legal response to CSA

Until 2012, the only sexual offences against children recognised by the law were covered by three
sections
of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual
intercourse
without consentsection 376), outraging modesty of a woman (unspecified actssection 354) and
unnatural acts defined as carnal intercourse against the order of nature with any man, woman or
animal (anal sex, homosexuality or bestialitysection 377).
Consequently, other forms of non-penetrative sexual assaults, harassment and exploitation were not
explicitly recognised as crimes and therefore not recorded (assuming they were reported). Increased
activism around child protection issues in the media and public discourse might partly account for the
Government of India passing a special law called, The Protection of Children from Sexual Offences
(POCSO) 2012. This Act criminalises sexual assault, sexual harassment, and pornography involving
a child (under 18 years of age) and mandates the setting up of Special Courts to expedite trials of
these offences.
Table 1 indicates recorded child rape cases nationally and for the state of Maharashtra as a case study.
Maharashtra is one of the most developed states in India and is among the top three states with the
highest recorded child rapes from 2001 to 2013 (NCRB 2015). Since 2001, there has been a gradual
but steady rise in recorded incidents of sexual abuse i.e. child rape. Although there is no evidence to
indicate that globally the prevalence of CSA has been going up over the years ( 2013), we might
hypothesize that increased reporting in India over this period might be the result of greater public
awareness, education and a more sensitive criminal justice response to CSA.
Following the enactment of POCSO, the number of offences registered under rape itself went up 44 %
nationally and 68 % in the state of Maharashtra within a year, lending support to the hypothesis.
Further, detailed figures from Maharashtra provided by the second author indicate that total registered
crime under POCSO was 2540 offences in 2013 and 3858 offences in 2014, amounting to a 51 %
increase in 1 year.
Table 1: Recorded rape against children-comparative figures
(source: NCRB website)
Year
All India

Maharashtra

2001

2113

367

2005

4026

634

2010

5484

947

2012

8541

917
6

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

2013

12363

1546

Child sexual abuse was prosecuted under the following sections of Indian Penal Code:
I.P.C. (1860) 375 Rape
I.P.C. (1860) 354 Outraging the modesty of a woman
I.P.C. (1860) 377 Unnatural offences
I.P.C. (1860) 511 Attempt
Child-abuse- 495

Legal Loopholes
Rape is an offence under the IPC, but lesser forms of sexual offences against children, are covered by
grossly inadequate and inexact provisions such as outraging the modesty of a woman.
How do we define modesty and apply Section 354, on outraging the modesty of women, with respect
to children? The gravity of the offence under Section 509, dealing with obscene gestures, is less. Yet
even in such cases, the childs psyche may be affected as severely as in a rape.
In Indian legal system, the child has been defined differently in the various laws pertaining to children
and the age of an individual in order to be determined as a child is not uniformly defined. Therefore
it offers various gaps in the legal procedure which is used by the guilty to escape punishment.
According to the Convention on the Rights of the Child, Article 1 defines the child as every human
being below the age of 18 years unless under the law applicable to the child, majority is attained
earlier.
The IPC defines the child as being 12 years of age, whereas the Indian Traffic Prevention Act, 1956
defines a minor as a person who has completed the age of 16 years but not 18 years. Section 376 of
IPC, (punishment for rape), defines the age of consent to be 16 years of age, whereas Section 82 & 83
of the IPC states that nothing is an offence done by a child under 7 years, and further under 12 years,
till he has attained sufficient maturity of understanding the nature of the Act and the consequences of
his conduct on that occasion.
There also exists a differential definition for boys and girls as seen in the Juvenile Justice Act,
which defines a male minor as being below 16 years and a female minor as being below 18 years of
age.
There were following loopholes for application of IPC to child abuse:

IPC 375 doesnt protect male victims or anyone from sexual acts of penetration other than
traditional peno-vaginal intercourse.

IPC 354 lacks a statutory definition of modesty. It carries a weak penalty and is a
compoundable offence. Further, it does not protect the modesty of a male child.

In IPC 377, the term unnatural offences is not defined. It only applies to victims penetrated
by their attackers sex act, and is not designed to criminalize sexual abuse of children.

Child Pornography to be criminalized:7

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Producing child pornography;

Producing child pornography for the purpose of distribution through a computer system;

Offering child pornography;

Offering child pornography through a computer system;

Making available child pornography;

Distributing child pornography;

Distributing child pornography through computer system;

Transmitting child pornography;

Transmitting child pornography through computer system;

Procuring child pornography for oneself or for another person;

Procuring child pornography through computer system for oneself and for another person;

Possessing child pornography;

Possessing child pornography in a computer system or on a computer data storage medium;

Knowingly obtaining access, through information and communication technologies to child

pornography.
The measuring of the real dimension of the volume of child pornography by circulating
around the world is probably impossible while the volume and activity via Internet Relay
Chat (IRC) OR www sites containing child pornography could so me how be measured, it
would not be able to consider the volume of the traffic which occurs through private channels.
In any case special consideration should given also to various legal system & traditions.

Considering the loopholes, it became utmost important for the judiciary to implement a specific Act to
particularly protect the children of our nation. In 2011, the Parliament of India passed the Protection
of Children From Sexual Offences Bill, 2011.
It was enacted as an Act in 2012 and is commonly known as POCSO Act.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

An Overview of the Protection of Children from Sexual Offences Act, 2012
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 there under.
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 via-a-via the child, like a family member, police officer, teacher, or doctor.
People who traffic children for sexual purposes are also punishable under the provisions relating to
abetment in the said Act. 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 casts a legal duty upon a person who has knowledge that
a child has been sexually abused to report the offence; if he fails to do so, he may be punished with
six months imprisonment and/ or a fine.
The said Act also casts the police in the role of child protectors during the investigative process. Thus,
the police personnel receiving a report of sexual abuse of a child are given the responsibility of
making urgent arrangements for the care and protection of the child, such as obtaining emergency
medical treatment for the child and placing the child in a shelter home, should the need arise.
The police are also required to bring the matter to the attention of the Child Welfare Committee
(CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to
make further arrangements for the safety and security of the child.
The said Act makes provisions for the medical examination of the child in a manner designed to cause
as little distress as possible. The examination is to be carried out in the presence of the parent or other
person whom the child trusts, and in the case of a female child, by a female doctor.
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. Hence, the child may have a parent or other trusted
person present at the time of testifying and can call for assistance from an interpreter, special
educator, or other professional while giving evidence; further, the child is not to be called repeatedly
to testify in court and may testify through video-link rather than in a courtroom.
Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year
from the date the offence is reported. It also provides for the Special Court to determine the amount of
compensation to be paid to a child who has been sexually abused, so that this money can then be used
for the childs medical treatment and rehabilitation.
The said Act recognises almost every known form of sexual abuse against children as 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 sexually abused child.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

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 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.
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 for the use of persons
including non-governmental organisations, professionals and experts or persons trained in and having
knowledge of psychology, social work, physical health, mental health and child development to assist
the child at the trial and pre-trial stage.
The following guidelines are Model Guidelines formulated by the Central Government, based on
which the State Governments can then frame more extensive and specific guidelines as per their
specific needs.
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 who are not trained in justice for children, childrens
rights or how to deal and communicate with victim children and their families.
The lack of clear guidelines and procedures on how to deal with 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 revictimised 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 sexual abuse, protection of victims, justice delivery, and rehabilitation of
victims are not isolated issues. The achievement of these objectives requires a 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.

10

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

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
professionals is crucial to avoid duplication and promote effective convergence.
A multi-sectoral approach, while mindful of childrens 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 frame work within which the service providers will work, and provide a mechanism
for information-sharing to help the victim. The process of investigation and referral of cases will also
improve.
It is envisaged that such an approach will 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 an important 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
multispectral, multi-disciplinary approach that will go a long way in achieving the objectives of the
POCSO Act, 2012.

General Principles for use of Professionals and Experts Assisting the Child at Pre-trial
and Trial Stages
The fundamental principles to be followed in the determination of a case involving a sexual offence
against a child have been laid down in various international instruments and in the Preamble to the
POCSO Act, 2012 itself. The State Governments, the Child Welfare Committee, the Police, the
Special Courts, all other Government functionaries as well as Non-Government Organisations, and all
professionals and experts assisting the child at the trial and pre-trial stages are bound to abide by these
principles.
These principles are a) Right to life and survival - Every child has the right to life and survival and to be shielded from
any form of hardship, abuse or neglect, including physical, psychological, mental and emotional
abuse and neglect; and to a chance for harmonious development and a standard of living adequate for
physical, mental, spiritual, moral and social growth. In the case of a child who has been traumatized,
every step should be taken to enable the child
to enjoy healthy development.
b) The best interests of the child - Every child has the right to have his/her best interests given
primary consideration. This includes the right to protection and to a chance for harmonious
development. Protecting the childs best interests means not only protecting the child from secondary
victimisation and hardship while involved in the justice process as victim or witness, but also
enhancing the childs capacity to contribute to that process. Secondary victimisation refers to the
victimisation that occurs not as a direct result of the criminal act but through the response of
institutions and individuals to the victim.

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THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

c) The right to be treated with dignity and compassion - Child victims should be treated in a caring
and sensitive manner throughout the justice process, taking into account their personal situation and
immediate needs, age, gender, disability and level of maturity and fully respecting their physical,
mental and moral integrity. Interference in the childs private life should be limited to the minimum
needed and information shared on a need to know basis. Efforts should also be made to reduce the
number of professionals interviewing the child.
At the same time, however, it is important that high standards of evidence collection are maintained in
order to ensure fair and equitable outcomes of the justice process.
In order to avoid further hardship to the child, interviews, examination and other forms of
investigation should be conducted by trained professionals who proceed in a sensitive, respectful and
thorough manner in a child-friendly environment. All interactions should also take place in a language
that the child uses and understands.
Medical examination should be ordered only where it is necessary for the investigation of the case and
is in the best interests of the child and it should be minimally intrusive.
d) The right to be protected from discrimination - The justice process and support services
available to child victims and witnesses and their families should be sensitive to the childs age,
wishes, understanding, gender, sexual orientation, ethnic, cultural, religious, linguistic and social
background, caste and socio-economic condition, as well as to the special needs of the child,
including health, abilities and capacities.
Professionals should be trained and educated about such differences. Age should not be a barrier to a
childs right to participate fully in the justice process. Every child should be treated as a capable
witness, according to his/her age and level of maturity.
e) The right to special preventive measures Children may already face twice as much risk of
repeated victimisation as adults because they often are or are perceived by a potential offender as
being vulnerable, unsure of how to defend themselves or unable to properly assert themselves and
take a strong position against an adult.
A preventive measure that could be used to protect children is to demand references and a criminal
background assessment before hiring personnel likely to work with children, such as schoolteachers.
f) The right to be informed - There are two aspects of child victims and witnesses right to be
informed. The first aspect is the more general one and consists of informing child victims and
witnesses about the assistance they are entitled to, the way legal proceedings are organized and the
role they can play in those proceedings if they decide to do so.
The second aspect is more specific and relates to information on the particular case in which the child
is involved: it implies being informed about the progress of the case, about the scheduling of the
proceedings, about what is expected of the child, about the decisions rendered, about the status of the
offender, and so forth.
g) The right to be heard and to express views and concerns Every child has the right to be heard
in respect of matters affecting him/her. The child has a right to participate at all levels: being
informed, expressing an informed view, having that view taken into account, and being the main or
joint decision maker.
When, for any good reason, the requirements and expectations of the child cannot be met, it needs to
be explained to the child, in a child-friendly way, why certain decisions are made, why certain
elements or facts are or are not discussed or questioned in Court and why certain views are not taken
into consideration. It is important to show respect for elements that a child finds important in his/her
story, but which are not necessarily relevant as evidence.

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THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

h) The right to effective assistanceThe child must receive the required assistance to address his/her
needs and enable him/her to participate effectively at all stages of the justice process. This may
include assistance and support services such as financial, legal, counselling, health, social and
educational services, physical and psychological recovery services and other services necessary for
the childs healing, as well as for justice and
reintegration.
i) The right to privacyThe childs privacy and identity must be protected at all stages of the pre-trial
and trial process. The release of information about a child victim or witness, in particular in the
media, may endanger the childs safety, cause the child intense shame and humiliation, discourage
him from telling what happened and cause him severe emotional harm.
Release of information about a child victim or witness may put a strain on the relationships of the
child with family, peers and community, especially in cases of sexual abuse.
In some cases it might also lead to stigmatization by the community, thereby aggravating secondary
victimization of the child.
There are two essential ways of protecting the privacy of child victims and witnesses: firstly, by
restricting the disclosure of information on child victims and witnesses and secondly, by restricting
the attendance of the general public or non-essential persons in courtrooms.
j) The right to be protected from hardship during the justice process - Throughout the justice
process, child victims are exposed to hardship, also referred to as secondary victimization: this can
occur while reporting the crime and recounting what has happened, while awaiting trial and while
testifying in court. The judicial process is a very stressful one for the child; as far as possible, any
stress the child may have as a result of the process should be minimized.
k) The right to safety - Where the safety of a child victim may be at risk, appropriate measures
should be taken to require the reporting of those safety risks to appropriate authorities and to protect
the child from such risk before, during and after the justice process.
Professionals should be trained in recognizing and preventing intimidation, threats and harm to child
victims and witnesses. Where child victims and witnesses may be the subject of intimidation, threats
or harm, appropriate conditions should be put in place to ensure the safety of the child.
l) The right to compensation The child victim may be awarded compensation for his/her relief and
rehabilitation. This compensation may be awarded at an interim stage, during the pendency of trial, as
well as at the conclusion of the trial.
Procedures for obtaining and enforcing reparation should be readily accessible and child-sensitive.
Victims may be repaid for material losses and damages incurred, receive medical and/or psychosocial
support and obtain reparation for ongoing suffering.

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THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Basic Guidelines- Conducting A Forensic Interview
In the context POCSO Act, 2012 interviews may need to be conducted by a variety of professionals,
including
police or investigative agencies. These are forensic rather than therapeutic interviews, with the
objective being to obtain a statement from the child. The followings are basic guidelines that should
be kept in mind while conducting forensic interview.
1) All children should be approached with extreme sensitivity and their vulnerability recognized and
understood.
2) Try to establish a neutral environment and rapport with the child before beginning the interview.
3) Try to select locations that are away from traffic, noise, or other disruptions. Items such as
telephones, cell phones, televisions, and other potential distractions should be temporarily turned off.
4) The interview location should be as simple and uncluttered.
5) Always identify yourself as helping person and try to build a rapport with the child.
6) Make the child comfortable with the interview setting.
7) Ask the child if he/she knows why they have come to see you. Children are often confused about
the purpose of the interview or worried that they are in trouble.
8) Convey and maintain a relaxed, friendly atmosphere.
9) Avoid touching the child and respect the child's personal space.
10) Do not suggest feelings or responses to the child.
11) Do not make false promises.
12) Establish ground rules for the interview, including permission for the child to say he/she doesn't
know and permission to correct the interviewer.
13) Ask the child to describe what happened, or is happening, to them in their own words.
14) Always begin with open-ended questions. Avoid asking the child a direct question.
15) To allow the child to use free narrative.
16) To avoid the use of leading questions.
17) The interviewer should avoid probing unnecessary details.
18) Not to prolong the enquiry.
19) Regularly check whether the child is hungry or thirsty, tired or sleepy, and address these needs
immediately.
20) Let the child do the talking and answer any questions the child my have in a direct manner.
21) Avoid questioning the child as to why he behaved ina particular way.
22) Avoid correcting the child's behaviour unnecessarily during the interview.
14

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

23) Interviewer should not discuss the case in front of the child.
24) Individuals who might be accused of influencing children to discuss abuse, such as parents
involved
in custody disputes or therapists, should not be allowed to sit with children during interviews.
25) In some cases, the interviewer may consider it appropriate to allow a support person to sit in on
the interview.
26) The interviewer should convey to all parties that no assumptions have been made about whether
abuse has occurred.
27) Interviewer to take the time necessary to perform a complete evaluation and should avoid any
coercive quality to the interview.

Guidelines of examine the child victim and witnesses

(I) Before Trial
1) List cases for an as soon as possible and avoid adjournments.
2) Ensure that communication with the child is in an understandable language and manner.
3) Consider what special measures may be taken in light of the child's wishes and needs.
4) Ensure that the child is able to exercise his/her right to be accompanied by an adult in whom he has
trust and confidence.
5) Chart all stages of children's evidence to minimize time at court and give them a fresh start in the
morning.
6) Request that the child is given an opportunity to visit the court to familiarize him with it before the
trial.
7) Request that the child sees or can be briefed on his/her statement for the purpose of memory
refreshing before trial.
(II) At Trial
1) Children have the right to be heard in any judicial and administrative proceedings affecting them.
2) Children have the right to information about the case in which they involved. Such information
would include;
(a) Charges brought against the accused.
(b) The progress and result of the investigation.
(c) The progress of the case.
(d) The status of the accused.
(e) The available evidence.
(f) The child role in the proceedings.
(g) The child's right to express their views and concerns in relation to the proceedings.
(h) The scheduling of the cases.
(i) All decisions affecting their interests.
(j) Their right to challenge or appeal decisions and the modalities of such appeal.
15

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

(k) The status of convicted offenders and the enforcement of their sentence, including their possible
release, transfer, escape or death.
3) Ensure ahead of time that equipment is working, recordings can be played and that camera angles
will not permit the witness to see the defendant.
4) Explain that the judge or magistrate can always see the witness over the live video link.
5) Request the Public Prosecutor to himself to the child before the trial and to answer his /her
questions.
6) Encourage the child to let the court know if they have a problem.
7) Do not ask the child at trial to demonstrate intimate touching on his/her own body.

16

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Challenges and controversies
Child sexual abuse is a multidimensional problem having legal, social, medical and psychological
implications9. There are certain drawbacks in the law around the following issues:
(a) Consent: if the child/adolescent refuses to undergo medical examination but the family member
or investigating officer is insisting for the medical examination, the POCSO Act is silent and does not
give clear direction. There is an urgent need to clarify the issue of consent in such cases. However, it
would be prudent to take informed consent from parent when the survivor is a child (below 12 yr) and
consent from both parent and the victim, if the survivor is an adolescent (age group from 12 -18 yr).
However, emergency treatment needs to be initiated without getting into these consent issues or
legality to protect the life of the child.
(b) Medical examination: the POCSO Act, Section 27(2) mandates that in case of a female
child/adolescent victim, the medical examination should be done by a female doctor.
However, the law mandates the available medical officer to provide emergency medical care. On the
other hand, the Criminal Law amendment act, Section 166A of Indian Penal Code mandates the
Government medical officer on duty to examine the rape victim without fail. this conflicting legal
position arises when female doctor is not available.
(c) Treatment cost: The law has casted legal obligation on the medical fraternity and establishment to
provide free medical care to the survivors. If there are no proper facilities or costly procedure is
required, the State should take responsibility of reimbursing the cost, otherwise hospital may provide
substandard medical treatment procedure or may deprive the survivor from comprehensive treatment.
(d) Consented sexual intimacy: Sexual contact between two adolescents or between an adolescent
and an adult are considered illegal under the POCSO Act 2012, because no exception has been
granted in the Act under which an act of sexual encounter with a person under 18 is an offence
irrespective of consent or the gender or marriage or age of the victim/the accused.
However, it is proposed that any consensual sexual act that may constitute penetrative sexual assault
should not be an offence when it is between two consenting adolescents, otherwise both the
adolescents will be charged under the POCSO Act, 2012.
On the other hand, the latest amendment of the Indian Penal Code concerning rape laws in 2013
clearly reports that the age of consent for sex has been fixed to 18 yr, hence, anyone who has
consensual sex with a child below 18 yr can be charged with rape, which may increase the number of
rape cases.
(e) Child marriage: Child marriage and consummation of child marriage are considered illegal under
the POCSO Act, 2012. In India even though child marriage is prohibited under secular law, it enjoys
sanction under certain Personal Law thus complicating matters10. these issues need to be addressed
when the law is open for amendment.
(f) Role of mental health professional : The definitive signs of genital trauma are seldom seen in
cases of child sexual abuse11. Hence, the evaluation of child sexual abuse victim requires special
skills and techniques in history taking, forensic interviewing and medical examination. the role of
mental health professional is crucial in interviewing the child in the court of law.
(g) Reporting: It is well known that the cases of child sexual abuse are usually not reported. Further,
knowing and reporting child sexual offence is highly difficult and highly personal decision for many
family members and also for survivors. Both survivors and family members feel embarrassed and
ashamed bearing the guilt, anger, frustration and emotional turmoil of the act.
The fear of re-victimization because of medical examination, criminal justice system and poorly
informed society members keeps them silent and undergo torture for long duration.

17

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

(h) Training: there is an urgent need to train the medical, teachers, judicial, advocates and law
enforcing agencies in the POCSO Act, 2012. Research, information, monitoring and sensitizing the
public are the biggest challenges. Training all the stakeholders is one of the important variables in
providing comprehensive care and justice. There is also an urgent need to train all the medical
undergraduates and primary health care doctors in providing child friendly interview, structured
assessment, collecting evidence, prophylaxis for sexually transmitted diseases and HIV, family
counselling and regular follow up.
A golden rule to all the medical professionals working with children is to report all reasonable degree
of suspicion in child sexual abuse to the legal authorities. Hence, professionals need to keep watch on
sexual abuse, explore and assess the child thoroughly.
Though the POCSO Act, 2012 is an excellent piece of legislation and it recognizes almost every
known form of sexual abuse against children as punishable offence, a few challenges remain to be
answered. A multi-dimensional, multi-agency team and multi-tier approach including access to
psychosocial support is to be made available to deliver holistic comprehensive care under one roof for
victims of child sexual abuse.

3 Main Issues Arising From POSCO

1. Age of consent
All sexual acts described under POCSO are, without exception, considered to be criminal offences if
they involve a victim under the age of 18 years. This holds true regardless of the issue of consent or
the age of the perpetrator. In cases of consensual sex between two minors the concepts of victim and
perpetrator become interchangeable as the law inexorably criminalises sexual behaviour for under-18
year olds.
The Act does not confer any sexual autonomy to children who may then be liable for committing
sexual acts under the law.
POCSO invariably criminalises a juvenile perpetrator of CSA to be dealt with under the provisions
of the Juvenile Justice (Care and Protection of Children) Act 2000 [section 34(i)].
However, in 2013 a Special Court judge rejected the notion that the human body of a person under 18
years is the property of the State, whereby it can restrict individual autonomy on sexual behaviour.
While ruling in a case where a 15 year old willingly eloped with and married a 22 year old man, the
judge held that criminalising such behaviour would not serve the purpose of the enactment.
There is thus a tension between the letter of the law and its spirit. Determining whether an allegation
involving underage sex was forced or consensual would depend greatly on individual interpretation of
the circumstances.
The law allows for abuse in either direction: being too restrictive of childrens autonomy or too
permissive of CSA.
Finally, lack of proper support and professional help to the victim and their family can sometimes
cause greater Psychological harm and trauma.
Child Welfare Committees are to provide this support in India but are not really functioning
satisfactorily (Maharashtra State Consultation 2014). It therefore creates difficulties for victims as
well as perpetrators under 18 years, the latter are criminalised but not provided with professional
help they might need.
2. Obligatory reporting
Mandatory reporting of CSA by any citizen, but especially those working with children and young
people in the education, social, religious and heath sectors is enshrined in POCSO (section 19).
18

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Failure to do so carries legal sanctions of imprisonment up to 6 months and/ or fines intended to
encourage compliance with the law.
Evidence in other countries (USA, Australia) shows that mandatory reporting of child sexual abuse
has had mixed success. The Report for the Royal Commission into Institutional Responses to Child
Sexual Abuse reported that since the aim of mandatory provisions is to encourage reporting not police
it, failures to report are rarely prosecuted in some jurisdictions. As a result, in New South Wales
(Australia) the law has been amended to remove sanctions for failure to report CSA .
However, mandatory reporting obligation under POCSO raises three problems specific to the Indian
context:
1. Criminalising sex under 18 years virtually pushes it beyond the purview of health professionals and
school counsellors who might be reluctant to impart safe sex advice or treat effects of unsafe or
reckless sexual practices without breaching patient confidentiality and/or getting involved with
reporting it to the authorities.
2. The law raises many issues for institutions, charities and organisations working with poor and
backward communities and children and who are deeply committed to building relationships based on
trust with young people.
Breach of trust would seriously jeopardise their efforts to communicate with and work with young
people if they are legally bound to report any knowledge of consensual, albeit underage sex.
Lack of training for professionals (doctors, teachers, psychologists, social workers, counsellors etc.)
working with children on how to deal with knowledge of sexual activity and to respond appropriately
can be an additional problem.
3. Mandatory reporting raises the issue of who is or should be responsible for enforcing this legal
obligation.
The police are overworked and scarcely possess the capacity to do so. Prescribing a legal obligation
with penal and financial sanctions, without thinking through the mechanism for its enforcement, and
the resulting lack of accountability, might mean that cases of failure to report fall through the cracks.
There is a danger that the law may be used only retrospectively to punish transgressions, rather than
ensure prospective reporting of suspected CSA by competent authorities in appropriate cases. A
possible solution to the problem would be for a competent authority to distinguish between acts of
crime and consensual sex at an early stage.
Thus, the incident ought to be reported, but decisions regarding registering an offence and
investigating may be discretionary.
3. Age determination
Determining the age of the victim and the perpetrator is fraught with problems. The Special Court is
authorised to determine age [section 34(2)] but there are no clear guidelines as to how they are to do
so.
It is generally acknowledged that forensic means of establishing age of a living person can be inexact
and quite complicated
The Supreme Court of India ruled in the case of Babloo Pasi vs State Of Jharkhand and Anr that
age determination is very difficult in the absence of birth certificates or other official documentation
and while the opinion of a specially constituted Medical Board may be useful in determining age, it
cannot be the only or conclusive factor to do so (Supreme Court of India 2008).

19

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

The Supreme Court further states that a hyper-technical approach should not be adopted and the Court
should lean towards giving the benefit of the doubt to the juvenile while ensuring that the law is not
being misused.
Under POCSO the ages of both, victim and perpetrator are pivotal in determining whether and how
the Act would apply and influencing the outcome at the charging and trial stages.
In developing countries like India where a large proportion of births are just not registered and
therefore substantial sections of the population do not have documents like birth certificates or school
leaving certificates to provide proof of age, this could be problematic.
Interaction between the three issues and its impact on child marriages
Laws do not operate in isolation and often real life situations can confound even the noblest of
intentions enshrined in law. In this case, the legal age of consent and mandatory reporting obligations
of POCSO combined with the difficulty in determining age could cause more problems than
anticipated for the criminal justice system.
POCSO in conjunction with Prohibition of Child Marriage Act 2006 is intended to protect girls from
being forced into early marriages.
While this is a worthwhile goal to pursue, cultural and social norms supporting early marriages in
India combined with the individuals right to sexual autonomy might present impediments to the
fulfilment of that aim.
A recent report on the census data indicates that in India one in six women were married before they
were 18 years of age, of which 17.5 % (6.5 million) women had been married within 4 years prior to
when the census was conducted .
Thus, there are possibly 6.5 million (and growing) potential law suits under POCSO. It could lead to
enormous waste of time and resources of the criminal justice system in cases of consent to marriage
by a girl between the ages of 1518 years.
Ignoring the role of consent in underage sex combined with the inexact science of age determination
in a climate of mandatory reporting can potentially lead to abuse of the legal system or miscarriages
of justice.
A possible solution to this problem may be the mandatory linking of UID (Unique Identification) with
victim and offender data in cases involving underage parties at the time of reporting to help determine
the age of the victim and perpetrator.

20

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Important Case Laws

SL. NO

NAME
CASE

OF

THE FACTS
CASE

1.

Nishu
v. Commissioner of
Police, Delhi and Ors.
2014 (3) ACR 2516
(SC)
P.
SATHASIVAM
C.J.I.,
RANJAN
GOGOI
N.V. RAMANA, JJ.

OF

THE REMARKS (SC/HC)

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 against the
officers of the

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.
The
Honble
Court also find
out 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
our
jurisdiction under
Article 32 of the
Constitution.

21

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Delhi
and
Haryana
police by way of
departmental
proceedings for their
refusal/failure
to
register the FIR under
the aforesaid sections
of the Indian Penal
Code as well as the
provisions of POCSO.
2.

Ashish Kumar and

Ors.
v.
State of U.P. and Ors.
MANU/UP/0439/2015
MANOJ MISRA, J .

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. After
investigation,
the
police laid chargesheet under Sections
352, 323 and 506 IPC
only. As a result,
Victims 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

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 CrPC as the
case
may
be
which means that
after submission
of the
charge
22

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

thereby directing
return of the
charge-sheet for being
laid before the Special
Court
constituted
under POCSO Act.
In
the
order
impugned it was
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.

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.
The Honble High
Court held that in
a case which is
triable by a Court
of Session though
the
Magistrate
cannot add or
alter a charge but
he is empowered
by 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
23

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

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.
3.

Gajraj Singh
v.
State of U.P.
2015 (3) ADJ 350
RAMESH SINHA, J.

FIR was registered by

the
applicant
(victims
father)
alleging that his minor
daughter whose date
of birth is 18.8.1996,
was enticed away by
one Ajit Singh. She
was recovered on
20.05.2014 from the
possession
of Ajit and charge
sheet
has
been
submitted in the case
against Ajit only
under Section 366 and
363 and 3 & 4 of
POCSO Act.
Thereafter applicant
as well as accused ajit
moved an application
before the Special
Judge/Additional
Session Judge for the
custody of girl. Father
claimed that she is
still a minor, whereas
accused
wanted
custody of her on the
ground that he was
her
husband.
Rejecting
both
applications,
court
sent the girl to Nari
Niketan.
Hence the present

In the instant case, the

Honble Court said
that it is a well-settled
law that a minor
cannot be confined in
Nari Niketan against
her wishes. In this
regard, the Judgment
of this same Court
was put forth. In the
case of Smt.
Parvati Devi v. State
of U.P. and another,
1992 All Crl C 32, it
has been observed by
the Apex Court that
the confinement of a
victim in Nari Niketan
against her wishes,
cannot be authorised
under any provisions
of the Code. There is
no
such
legal
provision wherein the
Magistrate has been
authorized to issue
directions that a
minor female child
shall, against her
wishes, be kept in
Nari Niketan.
Therefore, Court held
that it is clear cut case
of illegal confinement
of minor against her
wishes
violating
24

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

4.

Vijaykumar
v.
The
State
of
Karnataka
MANU/KA/0443/201
5
K.N.
PHANEENDRA, J.

5.

Sharath Chandra
Pottala
v.
Union of India

petition has been filed

by the applicant for
quashing
of
the
impugned
order
passed by the Court
below.

fundamental
right.
Hence, the impugned
order of the Special
Judge/
Additional
Sessions Judge is
hereby quashed.

The petitioner has

been working in the
Girls Hostel attached
to the Kittur Rani
Chennamma
Residential
School
and he has been illtreating, harassing and
sexually
exploiting
the girl students in the
said
Institution.
Another accused Smt.
Jyothi (A-2) has been
giving assistance to
the said person in
order to facilitate the
petitioner.
The
Principal
of
Kittur
Rani
Chennamma School,
Almel has lodged an
FIR for such act. The
Police
have
investigated
the
matter and submitted
the charge sheet. They
have recorded the
statements of the girl
students, Head Master
and others during the
course
of
investigation.
Petition is filed
before this Court
by A-1 for grant
of bail on the
ground of parity
as A-2 has been
granted bail by
the Court.
The petitioner, an
accused in Sessions
Case said to be
pending before the

In the instant case,

Court observed that
none of the girls have
stated as to whether
any one of them has
been exploited by
anybody. Every
student has stated that
some students were
called by the
petitioner and he used
to exploit her every
day. Except that
nothing has been
stated in the
statements. Even the
other witnesses have
also stated in the
similar fashion that
they received
information that the
accused has been
exploiting the girls in
the said hostel. But
nobody has stated that
who was the girl
actually exploited out
of the girls examined
by the Police.
Therefore on the basis
of lack of strong
reasons, the court has
not rejected the bail
application and held
that petitioner is
entitled to be enlarged
on bail.

Court after giving

considerations to the
challenges made to
the provisions of
25

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

2014 (2) WLN 410
(Raj.)
DINESH
MAHESHWARI AND
BANWARI LAL
SHARMA, JJ.

Sessions
Judge;
Jodhpur District has
filed a writ petition
seeking some reliefs.
Among them, one of
the relief is that the
Hon'ble Court be
pleased to hold the
provisions of POCSO
ultra
vires
the
Constitution of India.
Ground
for
challenging are :
a) Section 34 of
POCSO
empowers
the Special Court
under POCSO to
determine the
age
of
an
accused
if
question
arises
over the age of a
juvenile accused
whereas there is
no provision for
the
accused
person to seek
determination of
age
of
victim
despite
there
being a valid and
sustainable
question
and
dispute over the
age of victim and
such an anomaly
in POCSO creates
a
serious
prejudice for the
accused person.
b) A Special Court
under
POCSO
would not have
jurisdiction to try
an offence when
the
victim
is
major
and
therefore when a

POCSO Act, that the

so-called
shortcomings,
anomaly or lacuna in
the procedure as
provided,
remain
bereft of substance
and do not make out a
case
against
the
constitutionality
of
the enactment.
Court said that it
remains a trite that a
statutory
provision
could be challenged
as ultra vires on the
grounds either on the
legislative
competence or if the
provision offends any
of the provision of the
Constitution.
Legislative
competence is not in
question in the present
case; and on the
submissions as made,
it is unable to find any
of the constitutional
provision
being
offended
by
the
enactment.
It
said
that
POCSO has been
enacted for the
very special
purpose to protect the
children from the
Sexual Assaults and
Sexual
Harassment
etc. The procedure has
been provided for
recording
of
the
statement of the child
was also the medical
examination of the
child in Section 27 in
accordance
with
Section 164-A of
Code of Criminal
Procedure.
26

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

6.

dispute
or
question
arises
over the age of
victim,
there
ought to be a
procedure
for
deciding
the
same and denial
of such remedy
to the accused
would be serious
infringement
of
the fundamental
right of accused
under Arts. 14 &
21
of
the
Constitution
of
India.
P. Shanmugavel Raj
A thirteen year old
v.
child was subjected to
State and Ors.
sexual assault by
2015 (1) Crimes 536 Accused 1 and a case
(Mad.)
in Tirunelveli All
P.N. PRAKASH, J.
Women Police Station
was registered by the
Inspector of Police for
offences
under
Sections 376, 109,
506(ii) I.P.C. and
Section 5(1)(D) of
Immoral
Traffic
(Prevention)
Act,
1956 and Section 4 of
POCSO Act. After
completing
the
investigation,
the
respondent
police
filed a final report
against three accused
for offences under
Section 376(2) I.P.C.,
Section 4 of POCSO
Act r/w. 109 I.P.C.
and Section 5(1)(d) of
Immoral
Traffic
(Prevention)
Act,
1956.
This case was
filed before the

Designation
of
Special Courts for
trying the offences
under the Act has
been made with the
provisions overriding
even the other special
enactments
like
Information
&
Technology
Act,
2000. Petition was
dismissed by the
Honble Court.

According to the
Honble Court, from
a bare reading of
Section 28 of the
POCSO Act, the
Parliament
has
conferred powers on
the State Government
to designate a Court
of Sessions to be a
Special Court to try
the offences under the
Act. In other words,
POCSO Act does not
empower the State
Government
to
constitute or create
new Courts under the
Act,
but
only
empowers the State
Government
to
designate in each
District a Court of
Sessions to be a
Special Court to try
the offences under the
Act.
By telescoping one
provision
into
another, that is, by
telescoping
the
27

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Sessions
Court
(Manila
Court),
Tirunelveli.
The
final report was
filed
directly
before
the
Special
Court
(Mahila
Court),
Tirunelveli and it
appears
that
there
was
no
committal
proceeding
in
view of Section
33(1) of POCSO
Act
which
empowers
the
Special Court to
take cognizance
without
committal
proceedings.
Thereafter, Accused-1
filed the aforesaid
application
contending that Tmt.
B.R. Mehala is not
competent to conduct
the trial before the
said Court as she was
not appointed under
Section 32(1) of the
POCSO Act. The trial
Court dismissed the
application by a well
considered
order.
Aggrieved by which,
the first accused is
before this Court by
way of this Criminal
Revision Petition.

proviso to Section
28(1) of POCSO Act
into proviso (a) of
Section 25 of the
Commissions
for
Protection of Child
Rights Act, 2005 and
reading
it
with
G.O.Ms. No. 241, it is
crystal clear that the
Mahila
Court
in
Tirunelveli has the
jurisdiction to try the
offences in question.
On
question
whether the the
Special
Public
Prosecutor in the
Mahila Court in
Tirunelveli is
competent to conduct
the
present
prosecution.
Court
held that Section
32(1) of the POCSO
Act casts a duty upon
the State Government
to appoint Special
Public Prosecutor for
every Special Court
for conducting cases
under the provisions
of the POCSO Act.
The
State
Government cannot
abdicate its duty by
not
appointing
sufficient number of
Public
Prosecutors,
because trial under the
POCSO Act should
not get unnecessarily
delayed on account of
the failure of the State
Government
to
appoint Special Public
Prosecutors. Only to
achieve this end,
Parliament in its
wisdom has cast
a statutory duty
28

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

on
the
State
Government
to
appoint
Special
Public
Prosecutors
so
that prosecutions
do not suffer for
want
of
Prosecutors. This
does not mean
that
the
trial
before the Mahila
Court should be
conducted
only
by
a
Special
Public Prosecutor
appointed under
Section 32(1) of
the POCSO Act,
because Section
31 of the POCSO
Act clearly states
that the Special
Court shall be
deemed to be a Court
of Sessions and the
person conducting the
prosecution shall be
deemed to be a Public
Prosecutor.
7.

Sahil Thakur
v.
State of Himachal
Pradesh
MANU/HP/0527/2015
TARLOK
SINGH
CHAUHAN, J

In this case petitioner

and the prosecutrix
are studying in one
institute. She went
along
with
the
petitioner and they
were
also
accompanied
by
Rajat, Nitika and the
vehicle belonged to
one Harshav Thakur.
On 26.4.2015, all four
of them stayed at a
hotel
at
Solan
(Oachghat) and then
they
went
to
Chandigarh
and

Court held that the

object of keeping a
person in custody is to
ensure his availability
to face the trial and to
receive the sentence
that may be passed.
However,
this
detention
is
not
supposed
to
be
punitive
or
preventive. On the
basis of the record, it
cannot be said that the
petitioner would in
any manner impede
the course and cause
29

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

thereafter stayed in
the same room where
the
petitioner
is
alleged to have made
forcible
physical
contact
with
the
prosecutrix.
The
prosecutrix made no
grievance but later on
claimed that she had
not
only
been
kidnapped but had
been offered a drink
which had been laced
with some drug, as a
result whereof, she
was
remained
unconscious and the
petitioner
took
advantage of this fact
and
forcibly
established physical
contact with her.
The petitioner has
approached this Court
for grant of bail under
Section 439 CrPC.

of justice or that the

petitioner may in any
manner hamper the
free, fair and full
investigation.
Accordingly,
the
petition is allowed
and the petitioner is
ordered to be released
on bail on the
following terms and
conditions: (i) The
petitioner
shall
furnish bail bonds in
the sum of ` 50,000/with one surety of the
like amount to the
satisfaction of any
Judicial
Magistrate
1st Class, stationed at
Rohru,
District
Shimla, H.P.; (ii) the
petitioner shall fully
co-operate with the
investigation as and
when required by the
Investigating Agency;
(iii) the
petitioner shall not,
directly or indirectly,
make any inducement,
threat or promise to
any person acquainted
with the facts of the
case so as to dissuade
him/her
from
disclosing such facts
to the Court or to any
police officer; (iv) the
petitioner shall not
tamper
with
the
prosecution evidence
or
threaten
the
witnesses; (v) the
petitioner shall not
leave the country
without
prior
permission of the
Court;
(vi)
the
petitioner shall not
misuse his liberty in
any manner.
30

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

8.

Juyal
v.
State
2014 (3) JCC 1867
PRATIBHA RANI, J.

9.

Santhosa

On 16th July, 2013 at

about 3.30 p.m. her
daughter who was
aged about 15 years
and a student of 10th
standard, left home
for going to the
tuition and had not
returned thereafter.
FIR was registered on
the statement of Smt.
Taslima, mother of the
victim under Sections
363/367 of IPC &
Section 4 POCSO
Act.
During investigation,
when
she
was
produced before the
M.M for recording
her statement, she
stated that she was in
love with Faizan
(Petitioner). She had
physical relationship
with the above named
person of her own
free will and was
pregnant having
pregnancy of 45 days.
She also stated before
the learned M.M. that
she left the house of
her own and though
the accused wanted to
drop her back to her
house on the same
day, she insisted to
stay with him. She
was dropped near her
house on the next
date.
She
was
categorical in making
statement that nobody
had kidnapped or
enticed her away.
Petition has been filed
for seeking bail in the
instant case.
The present revision

In the present case,

Court observed that
when statement of
victim were recorded
under Section 161
CrPC, she named her
Jeeja, the petitioner,
to be the person with
whom
she
had
physical relationship
and became pregnant.
But she did not name
the petitioner when
she was produced for
getting her statement
recorded
under
Section 164 CrPC.
After looking into the
entire
facts
and
circumstances, court
said that it would be a
subject matter of trial
and as to which of her
statement is correct
and looking into the
nature
of
the
allegations
made
against the petitioner,
Court directed that the
petitioner be released
on bail subject to his
furnishing a personal
bond in the sum of
Rs. 25,000/- with one
surety of the like
amount
to
the
satisfaction of the trial
Court.

Court looked into the

31

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

v.
State
2014 (3) KarLJ 251
BUDIHAL R.B., J.

10.

Bhagwan
v.
State of Rajasthan
2015 (1) WLN 12
(Raj.)
SANDEEP MEHTA, J.

petition has been filed

by the petitioner
through his natural
guardian - mother
Nosar under Sec. 53
of the Juvenile Justice
(Care and Protection
of Children) Act,
2000 challenging the
order Dt. 20.10.2014
passed by the learned
Sessions
Judge,
Bhilwara
for
the
release of accused.
The prosecutrix and
the accused are both
of the same age
group. They were
both intimate and
eloped with each
other as a result of
their
affairs.
No
documentary evidence
was collected during
investigation to prove
the age of the girl.
She was found to be
between 16 to 18
years of age upon
medical examination.
She herself boarded
the motorcycle being
driven
by
the
petitioner and went
with him to Bhilwara.
From
Bhilwara,
both
accompanied
with
Radheyshyam went to
Maharashtra
and
worked together as
laborers in the cotton
fields for about 5
days.

material placed on
record and held that
as on the date of the
alleged incident, she
was at the age of 13
years. Therefore, the
contention of the
learned Counsel for
the petitioner that
there was a free
volition of girl and
both the petitioner and
the victim girl married
each other with their
free will was rejected
by the Court.
Seeing
the
circumstances in the
case and the gravity
of the offences, court
rejected
the
bail
application of A-1.
But the anticipatory
bail of A-2 & 3 was
allowed on following
conditions.

In the present case,

Court relied on the
material collected by
the
Investigating
Officer
during
investigation which
illustrates
that
32

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

petitioner and the
prosecutrix
were
having
intimate
relations from before.
It said that the consent
of the prosecutrix as
being minor is not
relevant.
However,
the fact remains that
the petitioner too was
a minor at the time of
commission
of
offence. Also, the
Probation
Officer's
report is not adverse
to
the
petitioner.
Therefore, Court feels
that there are valid
and
justifiable
grounds for directing
the release of juvenile
to the guardianship of
his mother Nosar.
Accordingly,
the
revision
petition
succeeds.

33

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Summary
POCSO 2012 has undoubtedly made a significant contribution to tackling the
problem of CSA in India. It has identified and criminalised a range of
unacceptable sexual behaviours that pose a threat to children.
The number of reported cases is increasing rapidly, indicating that the law has
made a substantial contribution in educating the public, sensitizing the criminal
justice system, and making the reporting of CSA not just acceptable, but also
mandatory.
The law has some unique features and is very comprehensive. However three
main issues identified in the letter and spirit of the law could create potential
problems for implementation in the Indian context.
The issues are: inflexibility regarding age of consent for sex less than 18 years of
age; mandatory reporting obligations; and the inexact nature of age
determination.
Further, the Indian governments desire to prohibit child marriages and protect
vulnerable children expressed in the Prohibition of Child Marriages Act 2006,
combined with POCSO 2012 should prove to be a deterrent to underage
marriages.
However, given the problems identified above and in a climate where social and
cultural norms still tolerate, if not actively encourage child marriages, the
potential for waste and loss of resources cannot be denied.

34

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Conclusion
Child sexual abuse is a dark reality that routinely inflicts our daily lives but in a majority of cases it
goes unnoticed and unreported on account of the innocence of the victim, stigma attached to the act,
callousness and insensitivity of the investigating and the law enforcement agencies, etc.
Merely enacting legislation will not be enough unless this is followed by strict enforcement of the law
with accountability defined. Also, parents, teachers and others in the community have a vital role to
protect children from sexual exploitation and abuse.
Children are the country's greatest human resource and a measure of the country's social progress lies
in the wellbeing of its children: that they are healthy, educated, safe, and happy and have access to life
opportunities.
It is our duty that Child Sexual Abuse should be combated as early as possible. This will help India
shine bright and develop in a crime free way, as children are the leaders of tomorrow. Criminal Law is
one important element of response to the sexual exploitation and sexual abuse of children.
The internet and ICT in general facilitate such offences and at the same time pose major challenges to
law enforcement. Online sexual violence against children is very much a transnational phenomena,
Comprehensive domestic legislation (POCSO) harmonized with international standards in prerequisite
for effective Law enforcement cooperation to protect children and investigate and prosecute
offenders.
The POCSO Act would be a great asset for curbing sexual offences against children.
The need of hour is mass awakening measures in corporate in POCSO Act and other criminal Laws
and its effective implementation needs to be geared up at appropriate level.

35

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Biblography
Website Referred

www.wikipedia.com

www.helplinelaw.com

www.halsbury.com

www.legalserviceindia.com

Other References
Ministry of Women and Child Development; Government 2. of India. Study on child abuse India
2007. Available from: http://www.wcd.nic.in/childabuse.pdf, accessed on October 10, 2014.
Ministry of Women and Child Development. Model guidelines 5. Under Section 39 of The
Protection of Children from Sexual Offences Act, 2012. Available from:
http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf, accessed on October 13, 2014.
The Protection of Children from Sexual Offences 6. Act, 2012. Available from:
http://wcd.nic.in/childact/childprotection31072012.pdf, accessed on October 10, 2014.
POCSO Act Providing Child-Friendly Judicial Process. 7. Press information Bureau,
Government of India. Available from: http://pib.nic.in/newsite/efeatures.aspx?relid=86150,
accessed on October 13, 2014.
The Criminal Law (Amendment), 2013. Available from: 8. http://indiacode.nic.in/acts-inpdf/132013.pdf, accessed on October 10, 2014.
Study on child Abuse in India 2007 (PDF), published by the Govt. of India (Ministry of Women
Child Development)

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37