AN ANALYSIS OF THE PROTECTION

OF CHILDREN FROM SEXUAL

OFFENCES ACT, 2012

Gita Mittal, Judge, Delhi High Court

Professor Ved Kumari, Faculty of Law, University of Delhi
Dinesh Kumar Sharma, Director, Delhi Judicial Academy
Source: http://ncrb.gov.in/CD-CII2013/Chapters/6-Crime%20against%20Children.pdf
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Obligation of the State under Constitution and
UN Convention on the Rights of the Child

• UN Convention on the Rights of the Child, 1989 requires the State to take
measures to protect children from unlawful sexual activities and sexual
exploitation to prostitution or pornography.

• Article 15 (3) of the Constitution of India mandates the state to create special
laws for the Children
• Article 39 , Directive Principles of State Policy mandates the state to ensure
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.

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 POCSO: Need of the Hour

• Till 2012, there was no specific legislation governing child sexual

abuse.
• Increasing incidents of Sexual offences against Children
• IPC recognised limited forms of Sexual Violence against children
- Scattered provisions in Indian Penal Code (Sections 354, 509, 376,
377) and Immoral Traffic (Prevention) Act, 1956 (Sections 4 (1), 5
(d), 7) were applied in cases of child sexual abuse.
• Sexual offences other than Rape fell into the category of
“Outraging the modesty of women” which was punishable with
a maximum term of two years and/or fine.
• Sexual offences in the IPC are gender specific, except section 377.
There was need for Gender neutral legislation.

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 POCSO: Need of the Hour …

• To protect Children from the offences:

• Sexual Assault
• Sexual harassment
• Pornography
• To safeguard Interest of Child:
• Child friendly mechanism for reporting
• Special procedures for investigation, medical
examination, recording of evidence
• Speedy Trials through designated courts
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 POCSO - Chapterisation

1. Preliminary
2. Sexual Offences against Children
3. Using Child for Pornographic Purposes and
Punishment thereof
4. Abetment / Attempt to commit an offence
5. Procedure for Reporting of Cases
6. Procedure for Recording Statement of the Child
7. Special Courts
8. Procedure and Powers of Special Courts and
Recording of Evidence
9. Miscellaneous
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 Child and Vulnerable Witness

POCSO
• Child - Any person below the age of 18
years

DHC Guidelines
• Vulnerable Witness – is a child who has
not completed 18 years of age

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 A Gender Neutral Act

Unlike under the POCSO Act, sexual offences under the Indian
Penal Code are not gender neutral. Except for the offence of
trafficking, the perpetrator in all sexual offences under Indian
Penal Code is a male and the victim a female.
POCSO Act remedied this defect by providing for
gender neutral provisions vis-a-vis the perpetrator as well as the
victim could be either male or female

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 Sexual Offences

• S.3 Penetrative Sexual Assault (Rape)

• S.5 Aggravated Penetrative Sexual Assault
• S.7 Sexual Assault
• S.9 Aggravated Sexual Assault
• S.11 Sexual Harassment
• S.13 Child Pornography
• S.16 Abetment to commit above
• S.18 Attempt to commit above
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POCSO also identifies following as offences:

• Sexual assault (S.7)

• Sexual harassment (S.11)
• Use of child for pornographic purpose (S.13)
• Storage of pornographic material involving a
child (S.15)

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 Penetrative Sexual Assault
• A Person • Babita (just above 18
• Penetrates penis / body years old) had voluntary
parts other than penis / sexual intercourse with
objects, Arun (just u/18 Years
• Manipulates the child’s
body to cause old). Babita became
penetration pregnant. Arun’s teacher
• Applies mouth to the learnt about it and
vagina, mouth, urethra or
anus of a child informed the police.
• Makes the child to do so • Has Babita committed the
• with him or any other offence of penetrative
person sexual offence?
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 Penetrative Sexual Assault
• A Person
• Babita (16 years old) was
• Penetrates penis / body dating Arun (17 Years old)
parts other than penis / with the knowledge of their
objects, parents after being engaged to
• Manipulates the child’s be married after finishing
body to cause their studies. Babita missed
penetration her menstruation and her
• Applies mouth to the mother took her for check up.
vagina, mouth, urethra or The doctor found her to be
anus of a child pregnant. He informed the
police.
• Makes the child to do so
• Who is the offender and who
• with him or any other is the victim?
person • They should be produced
before whom? 11
 PENETRATIVE SEXUAL ASSAULT

Penetration by Penetration of

Penis Vagina
Mouth Mouth
Object Anus
Body Part Urethra
Penis

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Aggravated Penetrative Sexual Assault (S.5)
Based on ‘how’, ‘when’, ‘where’, ‘by whom’ and
‘what act’.
• By Custodian (relative; management or staff
of institution for children)
• Situation of trust (police officer; armed force;
public servant; management or staff of
hospital, educational or religious institution)
• In a gang
• using deadly weapons, fire, heated substance
or corrosive substance
• Serious mental / physical incapacity
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Aggravated Penetrative Sexual Assault (S.5) …

• Attempt to murder
• Pregnancy
• Repeatedly
• More vulnerable child
• During riots (communal or sectarian violence)
• Assault followed by attempt to murder child
• Assault followed by stripping and parading
child naked in public.
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 Aggravated Penetrative Sexual Assault …

• Penetrative sexual assault that result in

a. grievous hurt or bodily harm and injury to any part of the
body of the child
b. physical incapacitation, mental illness or
temporary/permanent impairments because of the assault
c. pregnancy
d. HIV or any other dangerous infection or disease

• Penetrative sexual assault on

a. child with disability
b. child below 12 years of age
c. a child, with the knowledge that she is already pregnant
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Protective Procedure – Ss.33-38

8/1/2019 16
 Procedure – s.33

A child was raped by her father. Father’s picture is

published in the newspaper.
Has the newspaper violated the law?

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18
 What is the offence, if any?

• Sarita 17 years old, was travelling from Rishikesh

to Delhi alone. She befriended, Suresh and Karan,
two boys her age on the bus who were also going
to Delhi. Their bus failed midway and all
passengers had to find accommodation for
overnight stay. These three could find only one
room with difficulty. They decided to share the
room as the boys said that Sarita can sleep on the
cot and they will sleep on the couches. At mid-
night, Karan put his fingers in her vagina and
Suresh had sexual intercourse with her without
her consent.,

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 Special Personnel
• Special Court / Children Court
• Jurisdiction to try offences u/Information
Technology Act, 2000
• Cognisance without committal
• Special Public Prosecutor
• Facilitators
• Guardian at litem
• Support person
• Translators
• Experts

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 Punishments
• Aggravated – minimum 10 years /life; + fine
• Penetrative Sexual Assault – minimum 7 year /
life; + fine
• Sexual Assault – minimum 3 years / may be
five years; + fine
• Pornography – up to 5 years + fine
• Subsequent offences –up to seven years + fine
• Pornography as well as other sexual offences – life +
fine
• Sexual Assault – up to 3 years + fine

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 Punishments - Comparison
Pre- 1983 – Punishment for Rape – upto 7 years RI, life + fine
IPC prior to 2013 POCSO 2012 IPC 2013
• Rape – MM 7 • Rape – MM 7 Yrs • Rape – 7 yrs + fine
Yrs – 10 yrs + – life + fine • Aggravated –
fine • Aggravated – MM10 yrs – rest
• Aggravated – MM10 yrs – life + of life
MM10 yrs – fine • Gang – 20 yrs –
life +fine rest of life + fine –
• Less than MM just and fair to
for Spl reasons meet med
but not less expenses and paid
than 5 yrs to victim
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 Criminal Law Amend Act 2013

 5

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 Rajesh Sharma v. State
Cri Appeal No. 535/2006 DoJ: 04.01.2012 (DHC)

13. However, in the present case, what makes this

heinous crime even more shocking is the fact that the
person accused of raping an innocent 11 year old girl
is none other than her own father.

15. In view of the above judgments and looking to the

circumstances, specially to the fact that the victim is
the daughter of the accused himself, I am not inclined
to reduce the sentence in any manner.

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DHC Guidelines re Vulnerable
Witnesses

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 Balancing

• Protecting the rights of the accused

• Ensuring best evidence by witnesses

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 In POCSO
• Recording statement of the child
• By police
• By court
• Child not to see / come in contact with accused
• Police officer not to be in uniform
• Appointment of guardian et litem
• Support person
• Facilitators / translators
• In camera proceedings
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 Procedure and Powers
• Questions by PP / Defence counsel to be given
to the judge
• Judge alone to put questions to child
• Frequent breaks if needed
• Child friendly atmosphere – friend of child
• Not called frequently
• No aggressive questioning or character
assassination
• Non-disclosure of identity
• Compensation to victim
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 Proactive measures

• Pre-trial court visit

• Evidence of child from either side
• Explain court procedure

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 Some Problematic Areas
Compulsory Reporting (Sec.19)
To
(a) the Special Juvenile Police Unit; or
(b) the local police
By anyone who
• apprehends that an offence under this Act is likely to be committed
• has knowledge that such an offence has been committed
• comes across any material or object which is sexually exploitative of
the child (including pornographic, sexually-related or making obscene
representation of a child or children) through the use of any medium
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973
• Punishment for non-reporting – six months of imprisonment
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 Professional dilemma
• A mother took her daughter (19 years old) to
the psychiatrist as the daughter was having
trouble concentrating on her studies
• The psychiatrist stumbled on her sexual abuse
when she was 17 years old.
• Should the psychiatrist report?
• What would be the appropriate order if he is
being prosecuted for non-reporting?

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A sexual offence against a child is revealed/
disclosed to :

• close relative
• teacher
• mediator
• family court
• civil court (say, in a maintenance suit)
• criminal court (say, in a S.125 Cr.PC action or
a trial u/s 498A IPC)

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Presumption of commission of offence u/S.3, 5, 7, 9

• S. 29
• … 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

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 Presumption of culpable mental state

• S. 30
• If the offence requires a culpable mental state
• The courts shall presume such mental state
• Burden to prove otherwise on the defence
• The standard of this proof is beyond reasonable
doubt and not preponderance of probability

Explanation: “Culpable mental state” includes intention,

motive, knowledge of a fact, and belief in or reason to
believe a fact
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Punishment for false complaint or false
information by
• Child u/ 16 years – nil action
• Child above 16 – refer to JJB
• Others – 1 year imprisonment / fine / both

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 Consensual Sexual Acts of Children
• Both the boy and the girl are below 18 years of age. They
have entered into sexual activities with their "consent“. Are
they victims required to be referred to the CWC or they are to
be treated as juveniles and produced before the JJB?
• Consensual sexual activity with a wife below the age of 18
years would be an offence under POCSO.
However, as per the Exception 2 to Section 375 IPC, sexual
intercourse with wife above 15 years is not an offence under
the IPC.
How are these children to be dealt with?

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 Problem area

Section 42 of POCSO providing for alternative

punishment states that if any act is punishable under
POCSO or under any other law, the punishment
which is greater in degree should be awarded.

If a person is tried for sexual intercourse with a wife

between 15 to 18 years of age, what would be the
punishment awarded to him?

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 Compensation and rehabilitation

• The IPC did not have any provision for rehabilitation.

Girls also have not been imposed either a heavy fine
or awarded compensation under Section 357 of the
CrPC.
• In POCSO offences, there would be huge medical
expenses as well which have to be accounted for.

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 The Times of India: 03/31/2015

• A five year old girl was operated upon for three

hours on Monday after she was mauled by a 32
year old man in a vicious sexual assault in
Gurgaon on Sunday night.
• “She was bleeding and crying and I thought she
would die,“ her father said.
• “Her anus and vagina were severely damaged and
she bled profusely ,“ her grandfather said. “
• Sources said the girl might need to undergo
plastic surgery because of the extent of damage to
the internal linings of her private parts.
• Police suspect he intended to kill the child.
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 Problem Areas

Additional issues may arise on account of :

• Abetment of offence (S. 16)
• Punishment for non-reporting (S. 21)
• Onus of proof (S. 31)

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 Some questions which may arise …

• A young man aged 19 years old (or older) is

produced before you for commission of rape at
the age of 17 years
• A 20 year old woman is produced before you
as witness before you being the victim of rape
at the age of 17 years
• A 17 year old boy is produced before you for
allegedly committing murder
Are they covered under POCSO?
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 Questions which could arise

• Would the definition of child (any person)

includes transgender as well.
• Medical examination of a child – not offence
but problematic.

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 How this to be treated?
• There is an affair between 17 years old boy and 21
years old girl. They entered into sexual relations and
the girl gets pregnant as a result.
What is the status of the boy or the girl? Who is the
victim and who is the offender?
• More and more persons between 16 to 18 years are
sexually active or indulging in experimentation.
How is their sexual activity to be treated?
• As society becomes more permissive, there are
growing elements of touching in daily behavior of
young persons.
Would holding hands by two young persons be
treated as an offence under POCSO?
(Statistics reveal that ‘Romeo Juliet cases’ are only
40% and 60% are actual POCSO offences) 43
 Key Features of POCSO, 2012

• The definition of sexual offences is broad and not restricted to

rape. The Act protects children of both sexes from offences of
sexual assault, sexual harassment, and pornography.

• POCSO Act ensures effective access to justice as it establishes of

special procedure for reporting of cases, medical examination,
investigation, recording statement of a child, and Special Courts
for the trial of such offences.

• POCSO Act makes abetment of, and attempt to commit an

offence under the POCSO Act punishable.

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 Procedure under POCSO
The framers of the Act were conscious of the fact that children are vulnerable and
cannot be exposed to the regular court procedure. Whole effort underlines the procedure
to put the children at ease and to protect their dignity and confidence to elucidate
true and complete facts to serve the ends of justice. An effort to incorporate the child
friendly procedure suggested in ‘Sakshi v. Union of India’ was done for the first time.
Some of the provisions are as follows :

• The Special Court can take up the case directly without it having been committed to it
by the Magistrate Court.

• Questions to the child have to be put by the judge during the hearing on evidence

• The child has to be given frequent breaks during the Recording of evidence

• Video conferencing, curtains or one way mirror can be used to prevent the child from
seeing the accused while child’s evidence is being recorded
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 Procedure under POCSO …
• The child must be questioned in a child friendly manner

• The court has to ensure that child is not called repeatedly to testify in Court

• Child’s identity has to be protected throughout the proceedings

• The trial has to be held in camera

It is noteworthy to mention that the High Court of Delhi was already a step ahead by
laying down the “Guidelines for recording of evidence of vulnerable witnesses”.
Also in the celebrated case of “Virender v. State of NCT of Delhi”, High Court of
Delhi had already standardized the procedure to be followed while dealing with child
victims/witnesses. The above two efforts of the High Court of Delhi were along the
lines of the procedure which were later incorporated in POCSO.

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THANK YOU

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