The Protection of Children from Sexual Offences Act, 2012

According to the National Crime Record Bureau, as many as 109 children

were sexually abused every day in India in 2018 and a 22 per cent jump in such
cases has been seen every year. Around the globe millions of children suffer
harassment and are victims of violence and exploitation. According to UNICEF
Report, about 1 in 10 girls under the age of 20 have been forced to engage in sex or
perform other sexual acts. In 90 per cent of the cases, the accused is known to the
victim. Even though it is true that out judiciary plays significant role in delivering
justice to the victim but the trauma a child faces in such circumstances can never
be expressed in words. The Ministry of Women and Child Development was a
driving force behind the passage of the POCSO Act, which was designed to
confront the egregious offences of carnal nature and sexual exploitation of minors.
Before POCSO Act came into force, there was no specific legislation that dealt
with sexual offences in terms of children.

Article 15(3) of Indian Constitution empowers the State to make special

legislations for children. Article 39, inter-alia, provides that the State shall in
particular direct its policy towards securing that the tender age of children are not
abused and their childhood and youth are protected against exploitation. Thus,
legislature brought the Protection of Children from Sexual Offences Act, 2012, in
order to protect the children from the offences of sexual assault, sexual harassment
and pornography while safeguarding the interests of the child at every stage of
judicial process by incorporating child friendly procedure. The object of the Act
is to protect the child from many offences so that she/he does not feel sense of
discomfort or fear or is reminded of the horrified experience. The Act contains IX
chapters, 46 sections and one schedule. It came into force on 14th November 2012.

The Act expands the definition of sexual assault to cover both non-
penetrative and aggravated penetrative sexual assault and also imposes penalty
upon those who are in position of trust e.g. public servant, public workers, police
officer and educational personnel. The legislative intent is to make the criminal
justice system more child-friendly and to prevent re-traumatisation.
 For the purpose this Act, a “child” means any person below the age of 18
years, as per section 2(d). The term ‘child pornography’ was inserted by Act 25 of
2019 and has been defined as “any visual depiction of sexually explicit conduct
involving a child which include photograph, video, digital or computer generated
image indistinguishable from an actual child and image created, adapted or
modified but appear to depict a child. The meaning of the term ‘domestic
relationship’ has been borrowed from the clause (f) of section 2 of the Protection
of Women from Domestic Violence Act, 2005.

The Act deals with the following sexual offences:

Sl. Statutory Offence Punishment Statutory

No. Provision Provision
1. Section 3 Penetrative sexual Imprisonment not less than 10 years but Section 4
assault which may extend to imprisonment for
life and fine
Where child is below 16 years of age. Imprisonment not less than 20 years but which may
extend to imprisonment for life which mean the
remainder of natural life of that person and fine.
2. Section 5 Aggravated R.I, not less than 20 years but which Section 6
penetrative sexual may extend to imprisonment for life
assault which mean the remainder of natural
life of that person and fine.
3. Section 7 Sexual assault Imprisonment not less than 3 years but Section 8
which may extend to 5 years and fine
4. Section 9 Aggravated sexual Imprisonment not less than 5 years but Section 10
assault which may extend to 7 years and fine
5. Section 11 Sexual harassment Imprisonment which may extend to 3 Section 12
years and fine
6. Section 13 Use of child for Imprisonment not less than 5 years and Section 14
pornographic fine.
purpose - Second or subsequent conviction
imprisonment not less than 7 years and
fine.

Section 19 of the Act provides that any person (including child) who has an
apprehension that an offence of child sexual abuse is likely to be committed or
knows that such offence has been committed shall provide the information to the
Special Juvenile Police Unit or the local police.
 The Special Juvenile Police Unit of the police should make immediate
arrangement to provide care and protection and the matter should be reported to the
Child Welfare Committee and the Special Court within 24 hours. The Act casts
statutory mandate upon a person who has knowledge that a child has been sexually
abused to report the offence, failing to do so attracts imprisonment for a term
which may extend to six months or fine or both, as per section 21 of the Act.

The Bombay High Court’s Nagpur Bench through Justice Pushpa

Ganediwala had ruled in the case of Satish Ragde V State of Maharashtra
(2021) that grabbing a child’s breast without making ‘skin-to-skin contact’
constituted molestation under the POSCO Act. The apex court set aside the
Bombay High Court’s judgment and held that it would be appropriate situation to
apply ‘mischief rule’ of statutory interpretation. The Court must interpret the law
in order to prevent harm and promote the remedy. The apex court further observed
that High Court’s interpretation not only restricts the implementation of the
legislation but also seeks to pervert its objective.

The Hon’ble Supreme Court observed in Nipun Saxena V Union of India

(2019), that when an infraction is committed under section 23 of the POCSO Act,
the publisher or owner of the media, studio or photography facility is held jointly
and severally accountable for his employee’s act/omission. The apex court held
that:

“A minor who is subjected to sexual abuse needs to be protected even more

than a major victim because a major victim being an adult may still be able to
withstand the social ostracization and mental harassment meted out by society,
but a minor victim will find it difficult to do so. Most crimes against minor
victims are not even reported as very often, the perpetrator of the crime is a
member of the family of the victim or a close friend. Efforts are made to hush
up the crime. It is now recognised that a child needs extra protection.

“The entire purpose of the POCSO Act is to ensure that the identity of the
child is not disclosed unless the Special court for reasons to be recorded in
writing permits such disclosure. This disclosure can only be made if it is in the
interest of the child and not otherwise.’’
 The Court had also released a set of following guidelines:

(a) No one may broadcast the victim’s name or any detail that might lead
to the victim’s identification or make her identity known to the general public.

(b) In case where the victim is deceased or mentally ill, the victim’s name
or identity should not be revealed, even with the consent of next of kin, unless
circumstances justifying the disclosure of her identity exist, which must be decided
by competent authority.

(c) All papers in which the victim’s name is exposed should be kept in
sealed cover. Same obligation has been imposed upon all authorities to whom
victim’s name is provided by the investigating agency.

(d) All the States and Union Territories are requested to set up at least one
‘One-Stop Centre’ in every district within one year from the date of the judgment
of the present case.

Section 24 provides the procedure how the statement of the child is to be

recorded by the police officer, most preferably by a woman police officer not
below the rank of Sub-inspection who shall not be uniform while recording the
statement. It is also to be ensured that at no point of time the child come in contact
in any way with the accused. Procedure to be followed by the Magistrate while
recording the statement is given under section 25. Further the Act provides that the
medical examination of the girl child shall be conducted by a woman doctor, in the
presence of the parent of the child or any other person in whom the child reposes
trust or confidence.

Section 28 of the Act embraces the provisions which deal with Trial and
Special Courts. It provides that:

 A Court of session shall be designated as a Special Court for trial of

POCSO cases.
 There are child-friendly mechanisms for reporting, recording of
evidence, investigation and speedy trial of offences.
 The police are cast in the role of child protectors during the
 investigative process.
 They also have the responsibility of making urgent arrangements
for the care andprotection of the child.
 It also provides for the Special Court to determine the amount of
compensation to be paid to a child,
 The Court shall presume that the person being prosecuted has
committed the crime,unless the contrary is proved.

In Dashwanth V. State (2018 Crl.J.4226 Madras) it was observed that

“ The Legislature had foreseen the hardship and inability that child witness
would face while deposing with perfection and precision, due to shame, guilt
feeling etc, on the same lines the act was committed, which is not so in the case
of adult witnesses and, therefore, the Legislature with a view to safeguard the
children from such horrid experience, had provided for the presumption under
Sec.29 of the Act.’’

Section 33 to 38 of the Act deals with the procedure and powers of Special
Court and recording of evidence.

• The court may take cognizance of the offence on receiving a

complaint or the police report.

• The public prosecutor, the counsel for the accused shall put the
question to the court andthe court in turn will put those questions
to the child in trial.

• The examination shall be in child friendly atmosphere,

• Aggressive questions shall be avoided,

• If necessary frequent breaks to be given to the child to testify,

• The child's identity to b e kept undisclosed ( Subhash

Chandra Rai vs State of Sikkim, [Link]. 17 of 2017 para
 no.26) (Sec.33(7))

• The recording of evidence of a child shall be done within 30 days

of taking cognizance.

• Trial shall be completed within one year, as far as possible,

• To see that the child shall not see the accused during the
proceedings.

• In the trial of case in camera proceedings to be conducted but in

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

• The child can take assistance of legal practitioner.

• In case of dispute about age of accused, Special court can

determine the age.

• Similarly the Court shall presume mental culpability of the

accused until the contrary is proved.

 The accused has to prove them beyond reasonable doubt but not
on the basis ofpreponderance of probability.

In the case of Ms. Eera Through Dr. Manjula Krippendor Vs State (Govt
of NCT of Delhi) and anr (Cr. Ap. No.s 1217-1219 of 2016) where the issue
emanates for consideration is to interpret definition of ‘child’ given under
section 2(d) of the Act. Whether the child means any person below 18 yrs of age
should engulf and embrace the ‘mental age’ of a person or the age determined
by prevalent science pertaining to Psychiatry so that a mentally retarded person
or an extremely intellectually challenged person who even has crossed
biological age of 18 yrs can be included within the holistic conception of the
term ‘child’. The Court held that:
 “It is only from the language of Statute that the intention of Legislature must be
gathered, for the legislature means no more and no less than what it says. It is
not permissible to the court to speculate as to what the legislature must have
intended and then to twist or bend the language of statute to make it accord with
the presumed intention of the legislature. The Parliament has deliberately fixed
the age of the child and it is in the prism of biological age and nothing else.’’
Thus sec.2(d) does not include mental age.

The Act provides through section 41 that provision of section 3 to 13 shall

not apply in case of medical examination or medical treatment of the child
provided such examination or treatment is undertaken with the consent of his
parents or guardian.