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Protection of Child from Sexual Offences Act and Rule, 2012- Concept of Alternative Punishment along with Right of Child to Take Assistance of Lawyers and Experts

Protection of Child from Sexual Offences Act and Rule, 2012- Concept of Alternative Punishment along with

Anubhuti Varma Roll No- 721 5 th Year, 10 th Semester

CHANAKYA NATIONAL LAW UNIVERSITY

Submitted by:

Mr. Anshuman

Submitted to:

ACKNOWLEDGEMENT

Moot Court

I take this opportunity to express our humble gratitude and personal regards to Mr. Anshuman for inspiring us and guiding us during the course of this project work and also for his cooperation and guidance from time to time during the course of this project work.

Anubhuti Varma

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  • 2. TOPIC: Protection of Child from Sexual Offences Act and Rule, 2012- Concept of Alternative Punishment along with Right of Child to Take Assistance of Lawyers and Experts

  • 5. CITATIONS: The author has used the uniform footnoting style followed at Chanakya National Law University, Patna while writing this paper.

  • 4. SOURCES: The author has used secondary sources in the paper, viz., Articles, Books, Magazines, editorials and Newspapers.

  • 3. OBJECTIVES: To analyse the act in a socio legal perspective

R ESEARCH M ETHODOLOGY

  • 1. AREA: Child Rights

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POCSO Act in News………………………………………….26-27

Medical Examination of the Child………………………

...

11

Reporting of Cases…………………………………… 11-12

..

Ensuring Care and Protection of the Child…………….12-14

Recording Statement of the Child…………………… 14-15

..

Trial before the Special Court…………………………16-17

Role of Commissions for Protection of Child Rights….17-19

The advantages of proceeding under the POCSO Act

Multi-sectoral approach………………………………… 8-9

..

Punishments for Offences in the Act……………………9-10

Why Paedophilia Should Be Made A Crime………… 20-23

..

A Child Law in Oblivion………………………………23-25

Bibliography…………………………………………………………….30

Critical Analysis………………………………………………20-25

The POCSO Act………………………………………………………6-29

Introduction…………………………………………………………….3-5

Overview……………………………………………………….6-10

..

Conclusion……………………………………………………28-29

Procedures under POCSO Act……………………………… 11-19

compared to the Indian Penal Code (IPC)………………

Contents

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19

...

This act suggests that any person, who has an apprehension that an offence is likely to be committed or has knowledge that an offence has been committed, has a mandatory obligation to report the matter i.e. media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or photographic facilities. Failure to report attracts punishment with imprisonment of up to six months or fine or both. It is now mandatory for police to register an FIR in all cases of child abuse. A child's statement can be recorded even at the child's residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub- inspector. 1

Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five offences against children that are covered by this act. This act envisages punishing even abetment or an attempt to commit the offences defined in the act. It recognizes that the intent to commit an offence, even when unsuccessful needs to be penalized. The punishment for the attempt to commit is up to half the punishment prescribed for the commission of the offence

As per this act, the child's medical examination can be conducted even prior to registration of an FIR. This discretion is left up to the Investigation Officer (IO). The IO has to get the child medically examined in a government hospital or local hospital within 24 hours of receiving information about the offence. This is done with the consent of the child or parent or a competent person whom the child trusts and in their presence.

The Protection of Children from Sexual Offences (POCSO) Act 2012 is applicable to the whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of "best interest of the child".

1 Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

INTRODUCTION

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The State Commissions for Protection of Child Rights (SCPCR) has been empowered and with the responsibility of monitoring the implementation of the provisions of the POCSO Act 2012, to conduct inquiries and to report the activities undertaken under the POCSO Act 2012, in its annual report. The commission is also empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The commission can also recommend interim relief, or make recommendations to the state government to effectively redress the matter.

Child Welfare Committees (CWC) play a vital role under the POCSO Act, cases registered under this act need to be reported to the CWC within 24 hours of recording the complaint. The CWC should take into account the opinion of the child to decide on the case within three days and conclude whether the child should remain in an institution or be with the family. The CWC should nominate with the consent of the child parent / guardian / other person who the child trusts, a support person to assist the child during the investigation and trial of the case.

At night no child to be detained in the police station.

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

Frequent breaks for the child during trial.

Child not to be called repeatedly to testify.

The rules laid down in this act also had defined a criteria of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.

For offences under this act the burden of proof is shifted on the accused, keeping in view the vulnerability and innocence of children. To prevent misuse of the law, punishment has been provided for false complaints or false information with malicious intent.

Some of the child-friendly procedures which are envisaged under the POCSO Act are as

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follows:-

Emidio

The POCSO Act of 2012 looks into a support system for children through a friendly atmosphere in the criminal justice system with the existing machinery i.e. the CWC and the commission. The positive aspect is the appointment of the support person for the child who would assist during investigation, pre-trial, trial and post-trial. The major challenge also would be convergence between different entities under different legislations. The act makes it mandatory to report to the police about any offence defined under POCSO Act 2012. The recent decision of the cabinet in a bill to reduce the age of consent for sex to 16 years will mean that the protection given under this law to protect children from sexual crimes will be restricted to the children who are 16 years of age. There is a fear that this would end up taking away safeguards available to victims under the POCSO Act, especially girls in the 16- 18 age bracket. The benefits of POCSO Act would trickle down to the child only if this act is implemented in its true sense and spirit by all the agencies. 3

The media has been barred from disclosing the identity of the child without the permission of the special court. The punishment for breaching this provision by media may be from six months to one year. 2

2 Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

The act casts duty on state to spread awareness to the general public, of the provisions of this act through media i.e. television, radio and print at regular intervals.

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

<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-2012/articleshow/19718160.cms>

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Analyzing

POSCO

Pinho,

3

India,

April

2012,

Times

2013

25,

Act

the

of

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 assexual 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 aperson in a position of trust or authority vis-à-vis the child, like a family member, police officer,teacher, or doctor. People who traffick 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.

The POCSO Act, 2012 is a comprehensive law to provide for the protection of childrenfrom the offences of sexual assault, sexual harassment and pornography, while safeguarding theinterests 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.

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

To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come into force with effect from 14th November, 2012 along with the Rules framed thereunder.

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

THE POCSO ACT

– Kofi Annan

Overview

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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 said 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 child’s medical treatment and rehabilitation.

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 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. Further, by providing for a child-friendly judicial process, the said Act encourages children who have been victims of sexual abuse to report the offence and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time, the said Act will provide a means not only to report and punish those who abuse and exploit

The 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.

knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six monthsimprisonment and/ or a fine.

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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 secondaryvictimisation 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, children’s 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

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.

4 Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

the innocence of children, but also prove an effective deterrent in curbing the occurrence of these offences. 4

Multi-sectoral Approach

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A multi-sectoral approach, while mindful of children’s rights, would address the problems related to uncoordinated interagency mechanisms that child victims face in the legaland 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 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. 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.

There is thus a need for prompt and systematic multi-sectoral intervention that will be conducive to the justice delivery process, minimise the risks of health problems, enhance the recovery of the child and prevent further trauma. This can be achieved through action that addresses the needs of the child effectively, not only to protect him from further abuse and help him deal with his/her trauma but also to ensure that he is not re-victimised in the course of the justice delivery process. In addition to this, it also has to be ensured that the child is steered towards the path of healing, recovery and rehabilitation.

The 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

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.

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Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)

Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)

Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8)

Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)

Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)

Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. 5

including his/her family. Their objective is to foster better response mechanisms involving coordination amongst these professionals, so as to result in the evolution of a multi-sectoral, multi-disciplinary approach that will go a long way in achieving the objectives of the POCSO Act, 2012.

5 Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry of Women and Child Development, September 2013<http://wcd.nic.in/act/POCSO%20-%20Model %20Guidelines.pdf >

Punishments for Offences in the Act

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

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prescribes five sexual offences against children - penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornographic purposes. Abetment of or an attempt to commit these offences is also punishable under the Act. These offences are gender neutral vis-à-vis the perpetrator as well as the victim. The Act requires the State Governments to designate the Sessions Court in each district as a Special Court to try offences under the Act. If, however, a Children’s Court under the Commissions for Protection of Child Rights Act, 2005 or Special Court for a similar purpose has been notified in a district, then that court will try offences under this Act.

Any person (including the child) who has an apprehension that an offence under the POCSO Act is likely to be committed or has knowledge that an offence has been committed has a

The process laid down under the Act and POCSO Rules, 2012 for recording of complaints and trial of sexual offences against children is explained below:

Procedures under POCSO Act

Medical Examination of the Child

Reporting of Cases

Who can report?

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

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

mandatory obligation to report the matter.An express obligation has also been vested upon media personnel, staffs of hotels, lodges, hospitals, clubs, studios, or photographic facilities, to report a case if they come across materials or objects that are sexually exploitative of children.

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

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

  • 2. If the medical examination was not conducted prior to reporting the case, it must be done in accordance with Section 164A of the Code of Criminal Procedure. Samples

The police or the SJPU must take the following steps within 24 hours of the report of the case:

Ensuring Care and Protection of the Child

Whom should the case be reported do?

Language of the report

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  • 1. Upon receiving a report from the police or the SJPU stating that the child against whom an offence has been committed is a child in need of care and protection, the CWC must utilize its powers under the Juvenile Justice (Care and Protection) of Children Act, 2000 to determine within three days as to whether a child should be taken out of the custody of his family or shared household and placed in a children’s home or shelter home. The child and his parent/guardian/other person whom the child trusts and with whom the child has been living must be informed that such a process is underway. The CWC must take into account the opinion or preference of the child along with the best interests of the child while making this determination. The capacity of the parents/parent/other person whom the child trusts to provide for the immediate care and protection needs of the child, the need for the child to remain with parent/family/extended family, child’s age and level of maturity, gender, social and economic background, disability (if any), history of family violence, and other factors must be considered by the CWC.

  • 3. If the child is in need of urgent medical care and protection, she or he must be taken for emergency medical care to the nearest hospital or medical care facility centre. Such care should be administered in the presence of the parent/guardian/other person in whom the child has trust and confidence. A medical practitioner, hospital or medical facility centre providing such emergency medical care cannot demand legal or magisterial requisition or documentation before providing such care.

  • 4. The police or the SJPU must report the matter to the CWC and the Special Court and also indicate the steps taken to extend care and protection to the child. If a Special Court has not been designated the matter must then be reported to the Sessions Court.

  • must be collected for the purpose of the forensic tests and sent to the forensic laboratory at the earliest.
    2. In all cases under the Act reported to it by the police or the SJPU, the CWC can provide a support person to assist the child during the investigation and trial of the

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

Role of the CWC

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Availability of support services including counselling. If required, they must also assist in connecting the child and his or her family to persons providing support services.

Child’s right to legal aid and legal representation.

Developments, including the arrest of the accused, applications filed, and court proceedings.

Availability of public and private emergency and crisis services.

Procedural steps involved in a criminal prosecution.

Availability of victims’ compensation benefits.

Status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation.

Filing of charges against a suspected offender.

Schedule of court proceedings that the child is either required to attend or is entitled to attend.

case with the consent of the child or the child’s parent/guardian/other person in whom the child has trust or confidence. The support person could be a person or an organisation working in the field of child rights or child protection, or an official of a children’s home or shelter home having custody of the child, or a person employed by the DCPU. The child and his/her family can, however, seek assistance from any person or organisation of their choice. Upon their request, the CWC can even terminate the services of the support person assigned to them.

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

Vital Information that must be provided to the Child

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

Bail, release or detention status of an offender or suspected offender.

Rendering of a verdict after trial.

Sentence imposed on an offender.

Recording of statement by the police

Where the child’s statement must be recorded?

Recording Statement of the Child

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

As far as practicable, the statement must be recorded by a woman police officer not below the rank of a sub-inspector. She should not be in uniform when the statement is recorded. The assistance of a qualified translator or interpreter can be taken while recording the statement. The statement must be recorded in the presence of parents or any other person in whom the child trusts or has confidence. 6

While examining the child, the police officer investigating the case must ensure that the child does not come in contact with the accused at any point. The identity of the child must also be protected from the media unless the Special Court, in the interest of the child, directs otherwise.

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

6 Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

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

What steps must the police take to protect the child?

By whom should the statement be recorded?

Recording of Statement by the Magistrate

How must the statement be recorded?

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

If required, permit frequent breaks for the child during the trial.

Create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.

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

In the course of recording the examination-in-chief, cross-examination or re-examination, all questions to the child by the Special Public Prosecutor or the counsel for the accused must be communicated to the Special Court which must then put the questions to the child.

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

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

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

Examination, cross-examination, and re-examination

Responsibilities of the Special Court

Trial before the Special Court

Recording of Evidence

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Ensure that the child is not called repeatedly to testify in court.

Not allow aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times.

Ensure that the identity of the child is not disclosed at any time during the course of investigation or trial. Such disclosure can be permitted it is in the interest of the child after reasons are recorded in writing.

Ensure that trial is completed, as far as possible, within one year from the date of taking cognizance of the offence.

The Special Court can also order interim compensation to meet the immediate needs of the child for relief and rehabilitation at any stage after registration of the FIR. Such an order can be passed based on an application by or behalf of the victim or by the court on its own. It can also recommend the award of compensation if the child has suffered loss or injury and where the accused is convicted, discharged, acquitted, or is not traceable or identifiable. The compensation awarded is payable by the State Government from the Victims Compensation Fund or other schemes or funds established for the purpose of compensating and rehabilitating victims under Section 357A of the CrPC. Such compensation is payable within 30 days of the receipt of the order.

The Commissions must monitor the designation of Special Courts, appointment of Public Prosecutors, formulation of guidelines for use of NGOs, professionals and experts to be

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

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

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

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

Role of Commissions for Protection of Child Rights

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

The Commissions can also call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. While inquiring into matters relating to an offence under the Act, they can utilize the powers available to them under the Commissions for Protection of Child Rights Act, 2005. Post-inquiry, they can recommend to the government to initiate proceedings for prosecution, recommend interim relief, or make any other recommendations to effectively redress the matter. They can also approach the High Court or Supreme Court for orders, directions, or writs.

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

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.

For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

associated with the pre-trial and trial stage, dissemination of information about the Act through media to promote awareness among general public, children, parents and guardians.

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The IPC does not differentiate between adult and child victims whereas the POCSO Act specifically deals with sexual offences committed against children. The POCSO Act penalises sexual offences committed against both male and female child victims whereas the IPC does not take into account rape committed on a male child. The POCSO Act provides for the establishment of Special Courts for trial of offences and incorporates child-friendly procedures for reporting, recording of evidence, investigation and trial of offences. The Rules made under the POCSO Act provide for award of compensation, including interim compensation, to a child victim on the basis of criteria such as loss of education or employment opportunities, as well as consequences suffered as a result of the abuse such as disease, disability and pregnancy.

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

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

The advantages of proceeding under the POCSO Act compared to the Indian Penal Code (IPC)? 7

<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+Latest.pdf?

7 FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights

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Bengaluru hasn’t been a pensioners’ paradise ever since it turned into Silicon Plateau, home to the largest tech-savvy, transient-migrant population of any Indian city. People come to this city mostly to earn enough to be able to leave. In the decade between the Censuses 2001 and 2011, Bengaluru added to its 740 sq km a full 3 million people — or 35.5 percent of its current population. This once-pleasant urbe minutas is today one of the five most unsafe cities for women in India. The city’s growth rate of crimes against women (2011-12) was a stunning 10 percent, shooting up from 5.6 percent of the national average to 6.1 percent — in one year.

The Class I student of Vibgyor High School in East Bengaluru first complained to her mother of pain. A week later, the parents found out that two instructors had raped her. They lodged a police complaint on 14 July. The school authorities tried to hush up the matter and were initially reluctant to share the CCTV footage, leading to public outrage against the institution. On 20 July, the police arrested one of the accused, skating instructor Mustafa alias Munna, 30, under Section 376 (rape) of the IPC and Sections 4 and 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012.

To already traumatised parents of other children, the revelation made by the then police commissioner Raghavendra Auradkar came as a jolt. In his press conference after the arrest, Auradkar informed that “the accused used to click photographs of children, and show obscene videos to children”.

As is usual with the police, their delayed reaction to the crime was to strike out at everyone in range: One of the casualties of the crackdown was Auradkar himself, who has been replaced by a new commissioner, MN Reddi.

But because it is also, paradoxically, home to a population that is as educated and conscientised as it is transient, the popular abreaction to the rape of a six-year-old student inside her school on 2 July was immediate and massive.

Why Paedophilia Should Be Made A Crime 8

8 http://www.tehelka.com/why-paedophilia-should-be-made-a-crime/

Critical Analysis

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According to the study, children in the 5-12 age group reported the highest levels of abuse. Of the 12,000 children surveyed, 53.22 percent reported having faced one or more forms of sexual abuse; 21.90 percent reported facing severe forms of sexual abuse and 50.76 percent, other forms of sexual abuse. “Boys and girls are equally at risk of abuse. Moreover, 70 percent of abused children never reported the matter to anyone,” says Kushalappa.

Mustafa had been sacked in 2011 from Deens Academy in the city “for touching girls inappropriately”. However, neither his previous school thought it fit to register a police complaint against him, nor did the present school check his antecedents before hiring him. In its defence, Deens Academy said he was sacked for “gross misconduct” but there was “no culpable incident whatsoever” that required them to report him to the police.

It was hard for some parents to swallow. But not for the many child rights activists working on the ground. “While this incident managed to get attention, hundreds of similar incidents have not,” says Kushi Kushalappa, coordinator for the Collaborative Child Response Unit project, Enfold Proactive Health Trust.

Kushalappa points out that as far back as 2007, a government report, Study on Child Abuse in India, had highlighted the seriousness of the issue. Even a cursory glance shows how deep- rooted the problem is in our society. 9

India is a signatory to the UN Convention of the Rights of the Child, 1992, and is party to the UN Declaration on the Rights of the Child, 1959. But various governments have failed utterly to even nominally safeguard the interests of children.

Street children, child labourers and children in institutional care reported the highest incidence of sexual assault. And in half of the cases, the perpetrator was someone the child knew or in a position of trust and authority.

“No one wants to believe that anyone would do something so terrible to a child, so there is a collective denial about how pervasive child abuse is. Yet, everyone knows a family where sexual abuse is taking place. In most cases, children never tell anyone that they have been

9 Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

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As for the POCSO Act, it is a work of enduring vagueness. While it mandates that “whoever commits sexual assault shall be punished with imprisonment… for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine”, the punishments, after all is said and done, range from simple to rigorous imprisonment, of varying periods, and with fines — all of it so open-ended that the courts will have the run of deciding which paedophile gets put away for how long, if at all. Meanwhile, the law dealing with the violations of adult women, the Criminal Law (Amendment) Act, 2013, mandates that virtually every sexual assault be dealt with as rape, to the maximum reach of the law. Sexual assault on children is a matter of graded severity; sexual assault on adult women is a matter of near-homogeneous maximum punition.

What India still does not have is a specific, well-defined law to deal with the likes of Mustafa: paedophiles. Mustafa has what is called “a past”. He had photographs of other children. Since paedophiles tend to hunt out other paedophiles — the shared-interests syndrome — it is likely that he is part of, or has knowledge of, a paedophile ring. In the current furious condemnation of “sexual deviants”, the charge is being led by the most vocal women’s activists, whose agenda — valid on its own terms — is to expand “women’s issues” to include matters dealing with violations of minors.

Today, India has a law to deal with child abuse and child rape: the POCSO Act, 2012 reads well on paper, but it is a law aimed at mollifying the growing number of concerned citizens rather than actually making it illegal de iure et in praxim. What is the rationale behind the lawmakers making the law inapplicable in Jammu & Kashmir? As a cursory reading makes it clear, the driving reason is that the law brings into its jurisdiction “police officers… armed forces or security forces” — and the Centre has for years been determined to keep them from being nailed for a smorgasbord of excesses in J&K.

Meanwhile, National Crime Records Bureau data show that child rape has increased by 336 percent in the past 10 years, while Karnataka State Crime Records Bureau data also show a rise in child rape of 46.39 percent from 2008 to 2012.

abused. They don’t feel it’s safe to talk about it,” says Kumar Jagirdar of the non- governmental organisation CRISP-India (Child Rights Initiative for Shared Parenting).

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With the repeated string of rape of children being reported across the nation and a public outcry raging on the streets like molten lava flowing uncontrolled from a bursting volcano, the victimised and abused child suffers in silence. Traumatised, dejected and horrified family members of unfortunate victims find themselves helpless, confused and unable to cope up with the heinous crime. Even though on 22nd May, 2012, the Parliament passed the Protection of Children against Sexual Offences Act, 2012 (POCSO) and which came into force on 14th November, 2012, this special law to protect children from offences of sexual assault, sexual harassment and pornography, remains an unimplemented law, unknown to most and beyond knowledge or information of those who need to apply it. Sadly, the result is that POCSO, an Act, which is a necessity in India where 40 percent of the population is below the age of 18 and where over 53 percent of children reportedly surveyed in 2007 stated that they had experienced one or more forms of sexual abuse, is not complied with despite

“The situation is extremely bad,” says Shaibya Saldanha, co-founder of the Enfold Trust. “Most perpetrators are (seemingly) normal people, leading (seemingly) normal family lives…” Not too long ago, she says, child sexual abuse was thought of as a mental problem and the perpetrators were marked as, literally, “paedophiles”, a word that was first mentioned in a Krafft-Ebing report of 1900 and meant “child lover”. Today, the original meaning seems almost quaint, even benign. But, says Saldanha, “there is no such thing. There are no family stereotypes, and definitely no medication for paedophilia.” The only defence against paedophiles is, she says, “creating awareness” among parents and the public, and “the education of children”.

There is no denying the value of awareness about adult predators — and the ubiquity of predation — in the world at large. But, as in all developed societies that recognise paedophilia as a crime deserving of its own set of laws, punishments and medical interventions, every drive towards ‘awareness’ will have to be strengthened by disincentives to criminality.

10 http://lawyersupdate.co.in/LU/1/1279.asp

A Child Law in Oblivion 10

The Problem

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Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual offences against children as the law did not make a distinction between an adult and a child. POCSO deals with sexual offences against persons below age of 18 years. The POCSO defines “Penetrative sexual assault,” “sexual assault” and “sexual harassment” making the offence aggravated if it is committed by a police officer, public servant, staff member of jail, remand, protection or observation home, staff of a hospital or an educational institution or by a member of the armed or security forces. POCSO provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police who are required to make immediate arrangements for care and protection. The intent to commit an offence defined under POCSO is also punishable besides abetment or aiding the sexual abuse of a child. Special emphasis has been provided for trial in special children's courts with speedy disposal and special procedures to avoid child not seeing accused at the time of testifying.

Despite POCSO laying down that the Central and State Governments shall take measures to give wide publicity through media including television, radio and print media and imparting periodic training to all stake holders on the matters relating to implementation of provisions of POCSO, the Act is relatively unknown. Shockingly, in the most recent unfortunate rape case, the Delhi Police included the provisions of POCSO to the FIR reportedly after two days of the filing of the FIR on 15th April, 2013. In the infamous APNA GHAR Rohtak shelter home case of May 2012, despite rampant allegations of child sexual abuse of over 100 inmates, reportedly, the provisions of POCSO are still not stated to have been invoked against the accused. Most child sex abuse cases are not booked under POCSO. Child sex offenders get away despite a stringent law. The Act is unknown. Indoctrination, training, familiarisation and actual application by police officers and other stake holders still remains a far cry. POCSO remains an Act of law in oblivion.

being on the statute book. Rhetoric demands stiff penalties, expeditious new laws and fast track courts little realising that POCSO, as a wholesome law already says it all.

A Landmark Judgment

Awareness of POCSO

POCSO and its Content

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Upon the National Commission for Protection of Child Rights (NCPCR) petitioning the High Court, in a path breaking judgment rendered on 9th April, 2013, it has been directed that the states of Punjab and Haryana as well as Union Territory of Chandigarh shall ensure that, State Commissions for Protection of Child Rights headed by a Chairperson who should be a person who has been a Judge of the High Court, shall become fully functional by appointing Chairpersons and six members appointed through a transparent selection process. The High Court has further directed mandatory registration of all children homes, constitution and notification of children's courts and appointment of special public prosecutors besides constituting a proper selection committee to make further selections of various committees to be set up for child welfare. Hence, the entire machinery of monitoring child rights has been galvanised. A further direction has been issued that the National Commissions and State Commissions shall start discharging their functions under POCSO for implementing its provisions and modules/ training programmes for sensitizing all stake holders on child rights and for dealing with cases in children's court be also initiated in the Chandigarh Judicial Academy. It is now for the State Governments to implement this beneficial mandate and create an effective machinery to check heinous crimes of gross sexual abuse against children by enlightening all concerned about it.

The Justice Verma Committee Report in one of its conclusion on child sexual abuse holds “ there is an urgent need to audit the performance of all institutions of governance and law and order. It is indeed necessary that we must now have external social audit for the sake of transparency. We also wish to make it clear that every case of a missing child must be registered as FIR”. The Committee further make suggestions of constituting “ an oversight mechanism ” through the High Court, special training needs programmes, sensitizing officials on sexual abuse of children and strict implementation of provisions of various enactments of child laws. Summing up, we need to consolidate our efforts and focus our energies on existing laws and not look to amending more laws and making still further newer laws, alien to our culture, society, habits, life styles and harsh realities of the common man. In so far child sex abuse is concerned, POCSO is a wholesome law. The Government must create the machinery to implement it and educate its officers besides all stake holders on what it contains. The remedy to handle the public outcry is by implementing POCSO. All child offenders must be charged, tried and punished in accordance with POCSO expeditiously.

The Net Effect

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Speedy, stringent and relentless pursuit of POCSO is the remedy and a possible cure. The State must not waste its time in exploring alternatives when the answers exists in a law made by Parliament for these special offences against children, the most vulnerable section of society. Today's children are tomorrow's future. Let us protect them. The laudable endeavours of Late Justice Verma must find implementation.

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Earlier this year, a special POCSO court acquitted four men accused in the alleged gang-rape of a 13-year-old girl in Vakola. Special judge S D Tulankar acquitted Melwyn D'Souza, Bipin Singh, Sachin Yadav and Venkatesh Naidu due to lack of evidence. Defence lawyer Vinod Kashid said medical evidence in the case did not corroborate the victim's version. A 16-year- old girl, who was accused of aiding and abetting the gangrape, was also acquitted by the Juvenile Justice Board in October last year.

"Many cases are registered after an affair gone wrong. The parties reach a settlement and the victim turns hostile mid-way during trial, or the court concludes that there was consent in the sexual relationship," an expert said. Investigators said parents are often found to be guilty of misusing the stringent law. A National Commission for Women (NCW) member said parents of eloping couples "stand next to spurned lovers when it comes to lodging false complaints".

Former Thane commissioner of police, S P S Yadav, said police officers require special training to handle cases under the Act. Every stringent law always has scope for misuse, but section 22 of the Act stipulates punishment for registering false complaint/information. But the Act is silent on who would be entitled to file a complaint under this section. The Act should spell out procedures for registering such complaints, experts said.

RTI activist Chetan Kothari said data showed the majority of the victims were in the age group of 14-18 years. "The consensual age for sex has also led to criminalization of consensual sex. When the law was being amended, women's right groups had asked to lower the age to 16, which was not done. So, young people are left vulnerable to prosecution," he

Mumbai police spokesperson and DCP (crime) Dhananjay Kulkarni agreed many cases under the POCSO Act are registered by parents whose daughters have eloped. Y P Singh, a former IPS officer-turned-lawyer, added that any stringent law has the potential for misuse.

MUMBAI: The stringent Prevention of Children from Sexual Offences (POCSO) Act is open to misuse, caution experts, adding it could be why many cases result in acquittal.

Experts caution new law against child abuse often misused in ‘affairs gone

Narayan Namboodiri, TNN | Sep 22, 2014, 11.22 PM IST

POCSO Act in News

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wrong

said. He said men were particularly vulnerable and can be tried for sexual assault under the

said. He said men were particularly vulnerable and can be tried for sexual assault under the stringent provisions of the POCSO Act, besides additional charges of kidnapping and wrongful confinement if he elopes with a girl below 18 years of age.

Page | 30

Conclusion Page | 31
Conclusion Page | 31
Conclusion
Conclusion

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There can be no keener revelation of a society’s soul than the way in wh -Nelson Mandela

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

In December, the Supreme Court took exception to the failure of many state governments to implement POCSO provisions like setting up special courts in all districts, staffing state child rights commissions to effectively monitor POCSO implementation, and framing rules to be followed by police and other stakeholders in child abuse cases. In September, the women and child development (WCD) ministry had framed model guidelines to help states implement POCSO better. An exhaustive and forward-looking document, the model guidelines will help stakeholders like police personnel, medical professionals, psychologists, counsellors, social workers, lawyers and judges in interviewing child victims. According to the WCD ministry, only Tamil Nadu, Meghalaya, Maharashtra, Uttar Pradesh and Chandigarh have confirmed formulation of guidelines. Till date, only 18 states have set up special children’s courts.

The need for POCSO was felt after surveys showed a high number, 40 to 50 per cent of respondents, complaining of sexual abuse as children. Crimes against children rose from 26,694 in 2010 to 38,172 in 2012. Even before the Verma committee, constituted after the December 16 gang-rape, suggested changes in the definition of rape, POCSO had taken the lead. Besides being gender-neutral, the Act classified offences into penetrative sexual assault (seven years to life imprisonment), aggravated penetrative sexual assault (ten years to life), sexual assault (three to five years), aggravated sexual assault (five to seven years), and sexual harassment (three years and fine).

In the first months of POSCO, policemen, blissfully unaware of the law, continued to register offences under the IPC. While that situation has somewhat changed, confusion still persists

Page | 32

However, the above concerns notwithstanding, there is hope that if the new law resultsin more prosecutions, then more victims will be encouraged to report their abuse, andpotential attackers will be deterred from abusing children. It is essential that the law isunderstood and respected by police officers, government officials, and courts across thecountry. It will be the job of the national and state commissions for the protection ofchild rights to oversee this, and so it is essential that they be given sufficient resourcesand manpower. The government also needs to draw up appropriate training programs. 12

about charging offenders under the correct sexual assault category. Today, most functionaries assume their responsibility is complete by charging the accused under POCSO. The deterrence value of POCSO does not emanate from the harshness of its punishments. The favourable environment created for children and families to report crimes and cope with the vagaries of the trial stage is the heart, soul, and muscle of the POCSO Act. 11

  • 11 http://www.dnaindia.com/analysis/editorial-dna-edit-the-c-in-pocso-1949876

Future amendments of the law should address these key issues.

  • 12 http://www.hrw.org/ja/node/113337/section/9

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<http://archive.asianage.com/columnists/crimes-passion-521>

Child Welfare: A critical analysis of some of the socio-legal legislations in India, Prof. Shilpa Khatri Babbar, IOSR Journal of Humanities And Social Science, Volume 19, Issue 8, Ver. II (Aug. 2014), pp 54-60.

Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry of Women and Child Development, September 2013

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

FAQs Child Rights & DCPCR, Delhi Commission for Protection of Child Rights

<http://delhi.gov.in/wps/wcm/connect/3c436e00418acbebaf42bfe15bdae055/FAQ+La

Analyzing the POSCO Act 2012, Emidio Pinho, Times of India, April 25, 2013

<http://timesofindia.indiatimes.com/city/goa/Analyzing-the-POSCO-Act-

POCSO: A Child Law in Oblivion, Lawyers Update, June 2013

<http://wcd.nic.in/act/POCSO%20-%20Model%20Guidelines.pdf >

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Crimes of Passion, The Asian Age, March 8, 2013

580397601&CACHEID=3c436e00418acbebaf42bfe15bdae055>

<http://lawyersupdate.co.in/LU/1/1279.asp>

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