UNDERSTANDING

THE POCSO ACT

 Contents of Discussion
1. INTRODUCTION
1.1 Who is a child?
1.2 What is child abuse and its types
1.3 What is POCSO Act
1.4 Why POCSO Act
1.5 Features of the Act
1.6 Rights of a child victim

2. OFFENCES UNDER POCSO ACT

2.1 Abetment and Attempt
2.2 Other offences
2.3 Procedure for reporting of cases
3. PROCEDURE UNDER THE ACT
3.1 Overview
3.2 Child Welfare Committee
3.3 Support Person
3.3 Trial and Special Courts
3.4 Who is a Vulnerable Witness?

4. THE WAY FORWARD

INTRODUCTION TO POCSO ACT

WHO IS A CHILD?
Any person below the age of 18 years.

WHAT IS CHILD ABUSE?

Any intentional harm or mistreatment to a child.

Includes physical, sexual, emotional and/or psychological

maltreatment or neglect of a child.
Types of child abuse
What is POCSO Act?
 Protection of Children from Sexual Offences Act, 2012 – legislation
aims at protecting children from all types of sexual abuse.

 The Convention on the Rights of the Child was adopted by the

United Nations in 1989. Government of India acceded to it on 11th
December 1992.

 Article 15(3) of the Constitution of India empowers the state to make

special provisions for the children.

 POCSO Act was enacted on 19th June 2012 and enforced on 14th
November 2012.
Why POCSO Act?
 Preamble of the Act – An act to:
1. protect children from offences of sexual assault,
sexual harassment and pornography; and
2. provide for establishment of Special Courts for trial
of such offences.
 Sexual exploitation and sexual abuse of children
are heinous crimes and need to be effectively
addressed.
 Before POCSO Act – 354, 375 and 377 of IPC
 Drawbacks of aforesaid provisions:
1. Does not protect male victims
2. “Modesty” not defined. Weak penalty and
compoundable offence.
3. “unnatural offences” not defined.

 A legislative reform with a specific child

protection act in mind was needed.

 Amendment of 2019 – stringent punishment

including the death penalty – to deter & prevent.
Features of the Act
 Gender–neutral provisions

 Confidentiality of the victim’s identity (S. 23)

 Mandatory reporting of child abuse cases

 Child-friendly investigation and trial

Sections 24, 25, 26 and 33 of the Act lay down the procedure of
investigation and trial which has been formulated keeping in mind
the needs of a child.
i. Copy for Charge sheet – S. 25(2)
ii. Interim Compensation – S. 33 (8) of the Act & R. 9 of POCSO Rules
iii. Statement to be recorded at place of residence/of choice and generally by a woman
police officer, not be wearing a uniform. (S. 24)
iv. Officer should ensure that the child does not come in contact with the accused. (S.
24)
v. A child is not to be detained in the police station at night. (S. 24)
vi. Statement to be recorded in the presence of a person in whom the child has trust.
(S. 26)
vii. Statement of the child is to be recorded via audio-video electronic means. (S. 26)
viii. Medical examination shall be conducted by a woman doctor in case victim is a girl
child in present of person in whom child reposes trust. (S. 27)
ix. Assistance of the translators or interpreters or special educator may be taken
wherever necessary, for e.g. in the case of a child having mental/physical disability.
(S. 26)
x. Frequent breaks are to be allowed during the trial. (S. 33)
xi. Ensure that the child is not called to repeatedly testify in the trial court. (S. 33)
xii. Aggressive questioning or character assassination of the child is not permitted. (S.
33)
xiii. Identity of the child is not disclosed during course of investigation and trial. (S. 24,
S. 33)
Offences under POCSO Act
Penetrative Sexual Assault (S. 3, 4)
a) Penetrating penis to any extent into

Vagina Mouth Urethra Anus

b) Inserting to any extent any object or any part of body not being
penis
c) Manipulating any part of child’s body so as to cause penetration
into the vagina, urethra, anus or any part of body
d) Applying his mouth to penis, vagina, anus, urethra of child

of a child or makes the child to do so with him/other person.

Punishment: 10 years to life imprisonment and fine

Sexual Assault (S. 7, 8)
With sexual intent:
- Touches vagina/penis/anus/breast of the child; or
- Makes the child touch aforementioned of such person or
any other person; or
- Does any other act which involves physical contact
without penetration

Punishment: 3 years to 5 years and fine.

What makes an offence “Aggravated”?

1. Status of Accused

2. Manner of committing offence

3. Impact of offence on child

4. Status of child victim

Aggravated Penetrative Sexual Assault (S. 5, 6)
Punishment: Rigorous imprisonment for 20 years to life imprisonment
(remainder of natural life) and fine;

Or with death

Aggravated Sexual Assault (S. 9, 10)

Clause (v) to section 9 was inserted in 2019 – “(v) whoever persuades,
induces, entices or coerces a child to get administered/administers/direct
anyone to administer any drug or hormone or chemical substance to a
child with the intent that such child attains early sexual maturity.

Punishment: 5 years to 7 years and fine.

Sexual Harassment (11,12)
When a person with sexual intent –

Punishment: Imprisonment up to 3 years and fine.

Use of child for pornographic purposes (S. 13)
Whoever,
uses a child in any form of media, including Programme or advertisement

telecast by TV channels internet any other electronic form printed form

Whether or not such programme/advertisement is intended for personal use or

for distribution,
for the purposes of sexual gratification, which includes:
1. Representation of sexual organs of child
2. Usage of child engaged in real or stimulated acts (irrespective of penetration)
3. Indecent or obscene representation of a child
Shall be guilty of this offence.

“Using a child” includes involving a child through any medium like print,
electronic, computer or any other technology.
Punishment (S.14)
First time offender: Imprisonment for minimum 5 years and fine
Second/subsequent conviction: Imprisonment for minimum 7 years and
fine.

Whoever while using a child for pornographic purposes, commits

PSA/APSA/SA/ASA, by directly participating in such pornographic acts,
shall be punished for offences therein in addition to punishment provided
herein.
Storage of pornographic material (S.15)
Any person, who stores/possesses pornographic material involving a child,
a) fails to delete/destroy/report the same to authority, with an intention to
share or transmit child pornography, shall be liable to:
First time offender: Rs. 5000/-; and subsequent offender: Rs. 10,000/-

b) for transmitting or propagating or displaying or distributing in any

manner except for the purpose of reporting or for use as evidence in
court, shall be punished with imprisonment up to three years and/or fine.

c) For commercial purpose:

First conviction: 3 years to 5 years and/or fine
Subsequent conviction: 5 years to 7 years + fine
Abetment (S. 16,17)
A person who – instigates
- engages in any conspiracy
- intentionally aids
Punishment: If the act abetted is committed in consequence of
abatement, whoever abets shall be punishment with punishment
provided for that offence.

Attempt (S. 18)

One-half of longest term of imprisonment provided for that offence
and/or fine.
Other Offences
Section 21 – Failure to report or record a case
 imprisonment up to 6 months and/or both.

Section 22 – False complaint or information

 in respect of offence committed u/s 3, 5, 7 and 9
 with intent to humiliate, threaten, extort or defame
 imprisonment up to 6 months and/or both
 If a false complaint is made against a child – imprisonment up to 1 year
and/or with fine.

 Both these provisions does not apply to a child.

Section 23 – No report in any media shall disclose the identity of a child

including his name, address, photograph, family details, school, neighbourhood
or any particulars
Punishment: 6 months to 1 year and/or fine
Child Welfare Committee (CWC)
 CWC is an autonomous body declared as a competent
authority to deal with CNCP.
 Committee consists of a Chairperson, and 4 other
members (at least one of whom shall be a woman and
another an expert on the matters concerning children)
 Qualification of member – has a degree or has been
actively involved in child
psychology/psychiatry/law/social
work/sociology/education/ human health/human
development/special education for differently abled
children.
 There should be a meeting of the Committee at least 20
days in a month.
Functions and responsibilities of CWC:
1. Cognizance of children that are produced before it.
2. Conducting inquiry on issues relating to the safety & well being of the children
3. To direct the Child Welfare Officers, District Child Protection Unit and NGOs
for social investigation and also to submit a report before the Committee.
4. To conduct an inquiry for the declaration of fit persons for the care of CNCP
5. To declare children legally free for adoption after due inquiry who are
orphans, abandoned and surrendered.
6. To direct placing of a child in a foster care facility
7. To ensure care, protection, restoration and appropriate rehabilitation by
formulating child’s individual care plan
8. To select a registered institution for the placement of every child requiring
support
9. To make efforts for restoration of the lost or abandoned children to their
families
10. To take action against the rehabilitation of children who are abused sexually
and are reported as CNCP
11. To access appropriate legal services for the children
Support Person
POCSO Rules, 2020 define a ‘support person’ as “someone assigned
by a CWC to render assistance to a child during the process of
investigation and trial, or any other person assisting a child pre-trial or
during the process of a trial pertaining to the offenses under the POCSO
Act, 2012.”

In recent case of Bachpan Bachao Andolan v. Union of India, WRIT

PETITION (CIVIL) NO. 427 OF 2022 (decided on 18.08.23), the Hon’ble
SC passed an order relating to the appointment of support persons
under the POCSO Act and their qualifications.
"A support person is to provide information, emotional and psychological
support, and practical assistance which are often crucial to the recovery
of the child. This can go a long way in helping them cope with the
aftermath of the crime and with the strain of any criminal proceedings –
in many ways a support person, acts as guardian ad litem for the
child", the Court observed.
The court observed that a support person is responsible
for accompanying the child during recording of statement,
medical examination, depositions, and to assist in all other
interactions at the investigation, pre-trial, and trial stage.
However, the mandate for a "support person" as
envisaged under the POCSO Rules, remains unfulfilled. A
report submitted in the case Alarming Rise in the Number
of Reported Child Rape Incidents, In re in 2019 showed
that support person has been appointed only in 4% of
POCSO cases.
Trial and Special Courts
 Age determination (S. 94 of JJ Act)
 Sections 33 to 38
 Special Courts established u/s 28 of the Act.
 SPP shall be appointed for every Special Court
 Period for recording of evidence of child and disposal of
case (S. 35)
 Presumption of guilt (S. 29)
 Child not to see accused at the time of testifying (S. 36)
 Trials to be conducted in camera – Vulnerable Witness
Deposition Centre/Room (VWDC/VWDR)
 The court room and the children's room will be connected
by live video-link and video-conferencing facilities.
 In the course of recording evidence, all questions by SPP
or the counsel for the accused must be communicated to
the Special Court which must then put the questions to the
child.
Who is a Vulnerable Witness?
 As per Clause 3 of VWDC (Vulnerable Witness
Deposition Centre) Scheme (formulated by the Delhi
High Court), definition of “Vulnerable Witness” shall not
be limited only to child and would be expanded to include
the following:
a. Age neutral victims of sexual assault
b. Gender neutral victims of sexual assault
c. Witnesses suffering from mental illness
d. Any witness deemed to have threat perception under the Witness
Protection Scheme of the Union Government
e. Any speech or hearing impaired individual or a person suffering from
any other disability
f. Any other witnesses deemed to be vulnerable by the Court concerned.
 Assistance of an interpreter, expert or special educator
 Permit frequent breaks during the trial
 Create a child-friendly atmosphere
 No aggressive questioning or character assassination
 Ensure identity of child is not disclosed
 Order interim compensation to meet immediate needs of child for relief
and rehabilitation at any stage after registration of FIR – Rule 9
 Such interim compensation paid to the child shall be adjusted against
the final compensation, if any.
 Compensation can be awarded if the child has suffered loss or injury
and where the accused is convicted, discharged, acquitted, or is not
traceable or identifiable – Rule 9(2)
 A child is entitled to avail of the services of a private lawyer or a legal-
aid lawyer through the State Legal Services Authority (S. 40)
 Role of lawyer in the trial is subject to section 301(2) Cr.P.C. -
(i) to act under the instructions of the Special Public Prosecutor; and
(ii) after the evidence of all the witnesses is recorded, to submit
written arguments to the Special Court with its permission.
 Discussion & Conclusion
 Shortcomings of POCSO Act – Pendency of cases, silent on
consensual cases etc.
 On 27-9-2023, the Law Commission of India publishes its 283th
Report on the subject “Age of Consent under POCSO Act”.
 It ruled out reducing the age of consent to 16 years or giving
limited exception in cases involving a child above the age of 16
years. Instead, the Commission suggested granting judicial
discretion to Courts to impose less than minimum sentence
where the age of the child is 16 years or above and the age
difference between the persons is not more than 3 years.
 What Can You Do?
 The first step towards dealing with the problem of child sexual abuse is
recognition and acceptance that boys and girls are abused and need assistance
and support.

 Create awareness about the problem. This will help in prevention as well as
encourage victims to come forward.

 Create forums where children can be given information and support within the
village with the help of the schoolteacher, the anganwadi worker and the ANM.

 Listen to the child.

 Maintain confidentiality of the child.

 Ensure that a complaint and FIR is filed in the nearest police station.
 Village Level Child Protection Committee
(VLCPC)
 Who can be a part of the VLCPC:

 Gram Pradhan

 Anganwadi Worker

 Auxiliary Nursing Midwife (ANMs)

 SMC Members

 Members from CBO/NGO/SHGs

 Panchayat Secretary