POCSO Final Full Thesis

POCSO: Analytical Study Of
Protection from Sexual Offences against Children

In South Rajasthan
A Thesis
Submitted for the award of the Ph.D. Degree of
PACIFIC ACADEMY OF HIGHER EDUCATION
AND RESEARCH UNIVERSITY
By
ANKITA ROKADIA
Under the Supervision of
Dr. Ashutosh Pitalia
FACULTY OF LAW
PACIFIC ACADEMY OF HIGHER EDUCATION
AND RESEARCH UNIVERSITY
Udaipur
2019
DECLARATION
I, Ankita Rokadia do hereby declare that the Thesis being submitted

by me on “POCSO : Analytical Study Of Protection From Sexual
Offences Against Children In South Rajasthan” is a bonafide
research work done by me in accordance with the Rules and
Regulations of The Pacific University, for the award of Ph.D. in the
Faculty of Law. Neither this Thesis, nor a part of it has been
submitted by me to any other University for the award of a Degree or
Diploma.
Place: Udaipur
Date: ( Ankita
Rokadia )
CERTIFICATE
This is to certify that the thesis entitled " POCSO: Analytical Study Of
Protection From Sexual Offences Against Children In South Rajasthan” is a
record of bonafide research work done by Ankita Rokadia 2015-2019 under
my guidance and supervision for the award of the Degree of Doctor of
Philosophy (Ph.D.) in Law, from Pacific Academy of Higher Education and
Research University in conformity with the Rules and Regulations pertaining to
PhD Program of the University.
It is also certified that the thesis represents the original work on the part
of the Candidate and has not been submitted by me to any other University for
the award of a Degree or Diploma.
Place:-Udaipur Dr. Ashutosh

Pitliya
Date: Assistant
Professor
COPYRIGHT
I Ankita Rokadia, hereby declare that the Pacific Academy of Higher Education
and Research University, Udaipur, Rajasthan shall have the rights to preserve,
use and disseminate this dissertation/thesis entitled “POCSO : Analytical Study
Of Protection From Sexual Offences Against Children In South Rajasthan” in
print or electronic format for academic / research purpose.
Date:
Place: Signature of the Candidate

ACKNOWLEDGEMENT
It is my proud privilege and pleasure to express my sincere appreciation to all

who have helped me in the writing of the present thesis and I hope that this
recognition will, in part, convey my gratitude to all of them.
The present research on “POCSO : Analytical Study Of Protection From

Sexual Offences Against Children In South Rajasthan” is prepared under the
guidance of Dr. Ashutosh Pitaliya, Assistant Professor, Faculty of Law, BN
University, Udaipur, and I take this Valuable Opportunity to thank all the Great
Souls and Good Hearts who had been a moral support and have always
supported to every new approach, I experimented for satisfying my quest in
search of knowledge.
First and foremost, I thank almighty god who has always been the path and way
throughout my life.
I would like to thank my Husband Dr. Sourav Jain, who is my support pillar and
my child Jainik Jain, whose smile is my strength. To my family who persuaded
and confined their dream in me and believed that I am always capable of
achieving it. They always stood by my side to complete this work with utmost
care and diligence to the satisfaction of my Guide.
It is difficult to express my heartfelt gratitude and a word of thanks would be a

very small and incomplete expressions and does not fully express the
appreciation, admiration and kindness for the invaluable guidance, comments,
motivation, encouragement and suggestion attributed by my Guru, Mentor,
Philosopher and Guide Assistant Professor Dr. Ashutosh Pitaliya for the
valuable opportunity given to carryout Research programme and his support in
encouraging Legal Research. His Valuable contribution in the field of Inter -
Disciplinary and Multi - Disciplinary Research is Exemplary. He helped me to
formulate my thoughts in an unambiguous way. He was motivating,
encouraging and even in an enthusiastic manner personally answered the
Questionnaire that was circulated in person by me to him. This clearly shows
his Personal Interest in promoting and encouraging persons taking in Legal
Research. His encouragement towards Higher Education and Research is
phenomenal. I am greatly indebted to all the support rendered to me by the
Head of the Institution.
I find it difficult to express my deep sense of gratitude and indebtedness to Mr.

Devendra Singh Udawat, (Assistant Professor, B.N., University) whose juristic
and scholarly acumen is widely acclaimed in the legal world, without his
suggestion I can’t found my true guidance in the form of my mentor Dr.
Ashutosh Pitalia.
I am extremely thankful to the various authors and writers cited in the thesis or
referred to in the Bibliography for their works have been found of immense help
to me.
I have no words to express my sincere gratitude towards my parents Mr. Dilip

Rokadia and Mrs. Anita Rokadia for inspiring me and blessing me for the work.
I sincerely acknowledge the trust, willingness and co - operation given to me by
my in laws Mr. Nagin Lal Dosi and Mrs. Indira Dosi.
I owe deep gratitude to my brother in law Dr. Rahul Jain and Dr. Pooja Jain for
their profound love and cooperation at all the stages of this research work. I also
feel it proper to thank my niece Mokshi and nephew Kiyansh.
I wish to mention in special the source of my moral and emotional strength

shared by my sister Miss Bhumika Rokadia without her support and
encouragement; It would have become difficult for me to complete this task
within the stipulated time. Last but not the least, I thank deep to all my near and
dear ones who directly or indirectly support and help to complete my work.
(Ankita Rokadia)
Abbreviations
A. C. - Air Conditioners
AIDS - Acquired Immune Deficiency Syndrome
CBI - Central Bureau of Investigation
CCIs - Child Care Institutions
CCL - Children in Conflict with Law
CCTV - Closed Circuit Television
CNCP - Children in Need of Care and Protection
CPCR - Commission for Protection of Child Rights
CPP - Child Protection Policy
Cr.P.C. - Criminal Procedure Code
CRC - Convention on the Rights of the Child
CSA - Child Sexual abuse
CWC - Child Welfare Committee
DCPU - District Child Protection unit
DHR - Department of Health Research
DLSA - District Legal Services Authority
ECHR - European Convention on Human Rights
EU - European Union
FGM - Female Genital Mutilation
FIR - First Investigation Report
HIV - Human Immunodeficiency Virus
ICDS - Integrated Child Development Scheme

ICNPO - International Classification of Non Profit Organization
ICPS - Integrated Child Protection Scheme
IIPS - International Institute for Population Studies
IO - Investigation Officer
IPC - Indian Penal code
J&K - Jammu & Kashmir
J.J Act - Juvenile Justice (Care and Protection of Children) Act
JJB - Juvenile Justice Board
MLC - Medical Legal Care
MTPA - Medical Termination of Pregnancy Act
MWCD - Ministry of Women and Child Development
NCPCR - National Commission of Protection of Child Rights
NCRB - National Crime Record Bureau
NGOs - Non Government Organizations
OHCHR - Office of the High Commissioner for Human Rights
OP3CRC - Third Optional Protocol to the Convention on the Rights of the Child
on a communications procedure
OPCRC - Optional Protocol to the Convention on the Rights of the Child
OPs - Optional Protocols
POCSO - The Protection of Children from Sexual Offences
PTSD - Post Traumatic Stress Disorder
RPC - Ranbir Penal Code
SCPCR - State Commission for the Protection of Child Rights
SCPCR - State Commissions for Protection of Child Rights
SIT - Special Investigation Team
SJPU - Special Juvenile Police Unit
SPP - Special Public Prosecutors
STDs - Sexually Transmitted Diseases
T. V. - Television
TFEU - Treaty on the Functioning of European Union
U.A.E - United Arab Emirates
U.K. - United Kingdom
U.S. - United States
U.S.A - United States of America
UDHR - Universal Declaration of Human Rights
UID - Unique Identification
UN - United Nations
UNCRC - United Nations adopts Convention of Rights of the Child
UNICEF - United Nations International Emergency Fund
UT - Union Territory
WHO - World Health Organization

CONTENTS
S. No. Chapter Name Page No.

1. Introduction 01
1.1 Meaning & Definition of Child 07
1.2 Concept of Offence 11
2. History and Development of the POCSO, Act 24
2.1 Need of the Act 24
2.2 A comparative study of sexual offences against children 36
2.3 Origin of the Act 42
2.4 Child Sexual Abuse in India 48
3. Sexual Abuse 55
3.1 What is Sexual Abuse 55
3.2 Forms of Child Sexual Abuse 62
3.3 Who are the Offenders 69
4. Role of Bodies 74
4.1 Role of Government Department 74
4.2 Role of Commission 75
4.3 Role of government 79
4.4 Role of Judiciary 82
4.5 Role of Police 84
4.6 Role of Doctors 86
4.7 Role of Institution and Schools 88
4.8 Role of NGO’s 93
5. Legal Aspect of the Act 104

5.1 Provision of the Act 105
5.2 Analytical Study 118
5.3 Case Study 127
6. Socio – Legal Impact of the Act 174

6.1 Merits of the Act 174
6.2 Demerits of the Act 180
7. Conclusion and Suggestion 190

7.1 Conclusion 190
7.2 Suggestions 195
8. Bibliography 198
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25. Juyal v. State 2014, (3) JCC 1867 PRATIBHA RANI, J.
26. K. Muthu Mariappan v. The State, MANU/TN/1611 /2015 S. NAGAMUTHU, J.
27. Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991
28. Lakshmi Kant Pandey v. Union of India
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30. M. Ramesan & Ors. Vs. Deputy Commissioner of Police & ors., WP (C) 21630/2014
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33. Nishu v. Commissioner of Police, Delhi and Ors. 2014 (3) ACR 2516 (SC)
34. P. Shanmugavel Raj v. State and Ors., 2015 (1) Crimes 536 (Mad.) P.N. PRAKASH,
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35. Prakash Singh & others
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37. Ramrahit Singh v. Dhananjoy Singh and Ors., MANU/WB/021 8/2015 SHIB
SADHAN SADHU, J.
38. Ravinder Kumar v. State, 2014 (2) JCC 1210 MUKTA GUPTA, J.
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40. Sachinder v. State, 2015 (2) JCC 794 SUNITA GUPTA, J.
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SINGH CHAUHAN, J
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48. Siksha vs. State of Himachal Pradesh, 2013 Cri L.J. 2036
49. State vs Mohd Azeem Khan
50. State (Govt. of NCT of Delhi) v. Mullah Muzib, MANU/DE/0383 /2015 G.S.
SISTANI AND SANGITA DHINGRA SEHGAL, JJ.
51. State of Madras vs. K. Govindan, (1969)Cr LJ 823(ker).
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53. State of Maharashtra Vs. Praful B. Desai [2003 SCC (Cr) 827]
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55. State of Punjab v Gurmeet Singh 1996 (2) Sec384
56. State of T.N vs. Union of India 2013 (1) SCALE 260
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60. State v. Shambhu 2015, (1) JCC 611 PRADEEP NANDRAJOG AND MUKTA
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Abstract of the Thesis
“POCSO: Analytical Study Of

Protection from Sexual Offences against Children
In South Rajasthan
This abstract is based on the whole thesis. This in totality is a part of our research that
conclusively helps to conclude the thesis work. Here we discuss the issue relating to the
children, in a way to provide protection from the sexual abuses, to provide a healthy
environment to sustain the life, because they are the future of the next generation. In the
Indian scenario, children may face different kinds of abuses in their daily life such can be
known as exploitation, child labour, child trafficking. Such conditions are mainly linked with
the poor socioeconomic condition because India has a very large based population. As per the
UNCRC, it is the prime duty of the state to provide the basic health care, nutrition, education,
protection from maltreatment along with the supportive social welfare system and juvenile
justice system without having any responsibility of the family, community or the society at
large. In this regard, the families and the community have the educated, informed and
empowered, so they can provide care and protection to their children.
In this view, Indian government make any efforts to wipe the issue from the roots and for
that, there were many laws relating sexual crimes, initiated and maintained as to regularized
or to channelize the specific crime and their penal provision for the society. There were laws
which provide protection to the child but not in a very specific way of specific crimes such as
sexual crime and sexual abuse. Rape, the law was there in the IPC but it is not clear for
children, although it fails to recognize or provide protection from other sexual offences like
abuse, harassment, stalking and pornography. In IPC there was only one provision which can
be stated for such abuses is only “Outraging the modesty of women” such law provides
protection to girls only what about the boys? As society grows it leads the nation with both
the sides so to have benefits of it as well as their negative impact on the society. The problem
here we deal is like hushing up the family itself under the carpet. The issue is so marring that
need to be urgently taken into the action but it was the societal pressure the family, victims,
friends or even though the society itself not have the effort to come along with that and stand
against of it.
As statistics of the National Crime Records Bureau, shows that there is a regular increase in
sexual crime against the children. In that event, a study conducted by the Ministry of Woman
and Child development in 2007, in that result was shocking, as half of the surveyed child
accept that they face the sexual abuse issue in a variety of forms, at different stage of life.
There suffering shows, that there is an iminent need to provides remedies through specific
legislation. The department acknowledges that the issue of child abuse required being
accosted by the specific and stringent legal provision to fight such social evil of the society.
The POCSO Act was a boon to society therefore formulated in order to effectively address
the heinous crimes of sexual abuse and sexual exploitation of children. The present POCSO
Act received the President’s assent on 19th June 2012 and was notified in the Gazette of India
on 20th June 2012. The present act comes into the force in such a short period of time, but it
embarks the nation by provision and rule framed under the enactment, for the betterment for
the children of the nation.
The said Act come into force on 14th November 2012 forth with the Rules framed there
under this and named as The Protection of Children from Sexual Offences (POCSO) Act,
2012. The present act is very exhaustive in nature to provide protection to children from the
offences such as sexual assault, sexual harassment, pornography. The act has very distinct
feature in it to deal with the issue that is the act as child friendly feature to protect the best
interest of child at each primitive stage of the proceedings that is reporting, recording,
investigation or speedy trial in the judicial system as well as allocation of new courts
designated for that purpose only. Another highlight of the act is, it defines Child, as any
person below the age of 18 years, along with that clearly specify the forms of sexual abuse
that penetration, non- penetration, assault, there aggravated forms, pornography and child
trafficking. Abetment of child trafficking is also a punishable offence. Here age is not a
number, in case of a mentally ill child, laws must take into account the mental age or the
capacity of the victim to understand was is done to him. The existed act prescribe the
draconian punishment based as per the gravity of the crime with the punishment such can be
termed as maximum term of rigorous imprisonment for life, and fine.
The base of the POCSO Act, 2012, “Providing safe environment to the children is the
responsibility of all citizens of the country”, it so clear that, is characterized in the making of
the act as the sexual offence are gender neutral and provides friendly procedure and so
sensitive in regarding the treatment of children who face sexual abuse.
The present Act must work as in the domino chain that is interconnected or interdependent on
each and every stakeholder though are indulged in the providing services to the victim.
Legislatures make the laws and the government has to operate the laws if needed to serve
society. There are many governments or non-government stakeholder listed in the act which
can give acceleration to the execution or working of the system. Such representative of an
organization or the member are named as CWC, Judiciary, Medical officers, Police officers,
Support person, legal experts, NGO’s, are basically are the essential parties who make the
proceeding as linnets needed for the sake of the delicate issue.
All such stakeholder has their own specific responsibility to deal with the cases on their parts,
along with rules and regulation formulated for them to try the case in that prescribe method
only. There is each and specific guidelines were provided to each and every agency to
incorporate such rule into their proceedings. Inclusive of all this there was a mandatory
provision for the public to report the crime if not so than it is punishable; there were
guidelines for media not to interrupt in the cases unnecessary. In addition to that, it was the
public who make the change in society by upbringing the good generation only or having a
healthy environment.
The legislature has done tremendous work by enacting an exclusive law which aims to
protect the innocent mass of the society from the heinous crime. Still, the act is under the
sleeve of a drawer because it may alive by the implementation or execution for the purpose it
was made. Even judicial officer and the public prosecutors are not so known about the act or
even they know about it then there is no proper execution thereof because they prefer the IPC
over this because it gives lesser punishment to offenders. In this way, we can’t provide justice
to the children, for that we all must understand the act or spread awareness about the act in
the society.
State governments and official make initiation in this regard and make awareness programme
in conformity with the state police, judiciary, medical jurists, experts, lawyers, social welfare
department, child welfare committee, and NGOs as to organize the workshops and training
programme.
Crime related to children are increasing day by day and result of that new amendment is done
in 2018 as in the form to give capital punishment to an offender who abuses the child below
the 12 years of age. It is a necessary step which is taken by the government because the
nation future is of at stake. Generally, laws are enacted and codified to change the prevailing
situation of the society, but in sexual abuse cases, the situation is getting worse. There was a
list of person who can be blamed for that but most of it was lacking in the area of awareness
and openness about the issue. People remain silent, on such heinous crimes it strengthens the
power of the accused to escape from the punishment also. The said act is not so new in field
of laws, yet people may know the act, if any heinous crime of sexual offence is done, mass
activity is done, there were protest and agitation by the people for the victim, but on the other
hand, if a small act of sexual abuse is done in family by the family member it was suppressed
by the family itself that should be corrected. If that is not corrected than nothing gone a pay
for anything.
Spreading awareness about the POCSO is need of an hour because its unawareness can be
lead to children in the vulnerable condition at the end of such offenders. For such let all of us
make an effort and make a pledge that not to leave children in the neglected situation and
work altogether for spreading awareness because knowledge is the lamp which enlightens the
dark.
Key words:- Children, Sexual Abuse, Human Rights, Protection, Society, Awareness,
Child–Friendly Process, Stakeholder
Chapter 1
Introduction
Manu Smruti described children values in ancient time- “ Yatr naaryastu Pujayante ramante
tatr devtaa,” that is God abound where women are honored, this was the ancestral enchanting
in the land of Bharatvarsha (India) where gory heinous crimes against the women and
especially children are on the rise these day1.
It is considered that sexual abuse is the most common threatening conduct related to society
as to tend the fear in all the women, by the man dominating society by this they wish to get
control over the woman. One of the fastest growing crimes in India in relation to sexual abuse
is to be termed as “Rape”.2 Reported suggested in every twenty minutes in India rape is
occurs.3
In India, the report suggested by the department of the Ministry of Women and Child
Development that 53.22% children may report that they faced some type of sexual abuse
1
Pandey A L. Hindu view on women by Asha Lata Pandey.[ Last accessed on 2017]. Available from :
http://www.infinityfoundation.com
2
Behere PB, Mulmule AN, Editorial- Sexual abuse in women and anti rape bill: Lesson to learn from Success
and failure, Health Agenda.2013;1:27-3
3
Behere PB, Mulmule AN. Guest editorial – Sexual abuse in children: Where are we Heading? JMGIMS.2013, P.
18.
during their childhood, out of which 21.90% have faced some serious form of sexual abuse. 4
In children, we can categorize sexual abuse as sexual behavior or the relationship likewise
between a child or an adult, with two children with the use of force or coercion. More than
70% of abusers are an immediate family member or close acquaintances 5. There is hence a
need to focus the inquiry on children. In sexual abuse accused and the victim can be of the
same sex or may be of the opposite sex, it will do not affect anything. The sexual behavior
includes touching breast, buttocks, and genitals, whether the victim is dressed or undressed;
exhibitionism; fellatio; cunnilingus and penetration of the vagina or anus with sexual organs
or object. Sexual abuse consists of either one time or for a long duration both are the same in
the eye of law. In addition to the form, inappropriate sexual touching, sexual abuse also refers
to sexual exploitation of children, for instance, conduct or activity related to pornography
depicting minors promoting or trafficking in prostitution of minors.6
Sexual abuse not just an occurrence of an incident by itself but it has a very serious,
dangerous and long-lasting impact as psychological disturbances. Consequently, it started
with anxiety to sexual defects, bodily dysfunction or post-traumatic stress disorder that an
outcome of sexual abuse. By such impression, it will be seen that sexual crimes against
women are generally in reproductive age. The numbers of incidents of sexual abuse are
increasing today. This area is very sensitive. We should be receptive for early identifications
and prevention of such incidences in girls in the community.
Child abuse exists in India, throughout the history in all the societies; it is a true fact that
can’t be denied by anyone as in the forms are varied as per the societal norms, behavior, and
condition. Moreover, to recognize that child abuse is a social problem is something out of the
box content. The research on child sexual abuse in India has not received much attention this
due to low reporting of victims. Merely, 53% of children experience some kind of sexual
abuse; out of them, 52.94% were boys and 47.06% girls. The significant finding was contrary
to the general perception; the overall percentage of boys was much higher than that of girls.
Across the country, every second child is being subjected to one or other forms of sexual
abuse and every fifth child facing severe forms of sexual abuse.7
4
New Delhi: Ministry of Women and Child Development, Government of India; 2007, Available from :
http://www.wcd.nic.in/child abuse.pdf.
5
Behere PB, Mulmule AN. Sexual abuse in eight year old girl: Where do we stand legally? Indian J Psychol
Med.2013. p.35. Available from : http:// www. Ijpm.info/
6
Bernet W.Kaplan and Sadock’s Comprehensive Textbook of Psychiatry.2. Vol.52.New York: Wolters Kluwer
Health, Lippincott Williams & Wilkins; 2009. Child maltreatment ; pp3795-6.
7
Crime Against Children 2011. New Delhi: Ministry of Home Affairs, Government of India;2011, Natioal Crime
Record Bureau. Available From :http://www.ncrb.nic.in/
A total of 33,098 cases of sexual crime against children were reported in the country in 2011
as compared to 26694 in 2010 it means increased by 24 %. The number of cases under
procuration of minor girls increased from 679 (2010) to 862 in 2011, that is increased by
27%. A total of 7112 cases of child rape were reported in the country during 2011 as
compared to 5484 in 2010, increased by 29.7%. Sexual abuses highest in Madhya Pradesh
(1262) followed by Uttar Pradesh (1088) and Maharashtra (818).8
In 2011, more than 24000 cases were reported- about 70 a day. New figures released by Delhi
Police reveal that a woman is raped every 18h or molested every 14h. 9 There are 80,000
pending rape cases in India and nearly 1000 rape cases are pending in Delhi courts.10
The Act has come into force on 14 of November 2012. It defines a child as any person below
the age of 18 years and provides protection from sexual assault, sexual harassment, and
pornography. Such offences first time introduced in law and clearly defined as to support the
object of the law. The POCSO Act implemented stringent punishments, which have been
classified as per the gravity or harshness of the offence.
The highlights of the POCSO Act are:
 The Act is gender–neutral and has listed aspects of touch as well as non behavior
(photographing a child in an obscene manner) under the ambit of sexual offences.
 The Act incorporates child-friendly procedures for trial of offences and a special court
to complete the trial in year.
 For the speedy trial, evidence of the child to be recorded in 3 days of offence.
 The attempt to commit an offence has also been made liable for punishment.
 The act also covers the trafficking of children for sexual purposes.
 The burden of proof is shifted on the accused.
In keeping with the best international child protection standards, the Act provides for
mandatory reporting of sexual offences. There was punishment for the person who
fraudulently, with the malice intention filled a false complaint to defame, misuse the process
of law, it may include child also.11
8
LamaP, Bagga B. A women is raped every 18 hours in Delhi. India Today .2011. Jan 7,.Available at:
http://www.indiatoday.intoday.in
9
Polanki P. Nearly 1000 rape cases await light of justice in Delhi’s courts, First Post India December.2012,
Available from: http://www.firstpost.com/ india.
10
New Delhi: Ministry of Law and Justice, Government of India; 2012. Protection of Children From Sexual
Offences Act 2012. Available from: http://wcd.nic.in/child act/child protection.
11
New Delhi: Ministry of Law and Justice, Government of India; 2012 , Protection of Children from Sexual
Offences Act 2012. Available from http://wcd.nic.in/Childact/childprotection.
On 22 February 2013, a circular has been issued by the School Education Department, under
section 21 of the Protection of Children from Sexual Offences Act, 2012. It is mandatory for
teachers and school management to report CSA to local or Juvenile Police, otherwise, there is
6 months imprisonment, fine or both.12
These sections do not include the common form of CSA or their impact on the children. The
traditional interpretation of the term “penetration” as explained in Section 375 comes as a
hindrance to the cases of child sexual abuse. Explanation to section 375 does not treat force
sexual intercourse by a husband against the wife (above 15 years) as an offence. Courts are
not child- friendly and the whole atmosphere is intimidating and there is no protection law for
boys. An absence of legal aid by lawyers trained in child rights and child protection.
Guidelines lay down to protect the privacy and confidentiality especially of victims of sexual
offences and children often flouted by media. There is no provision to deal with the
psychological trauma of the child. Insensitive police, medical and court procedures along
with the delay in registering cases as well as in trials is commonly noticed. In many cases, the
victim girls attain the age of majority and become adults while the case solves out or final
judgment comes out.13
There are some specific behaviors which show that may be a strike to hit the offender.
 An adult shows undue attention toward a child.

 Insists on touching, hugging, kissing, tickling or holding child even when the child
does not want.
 Is overly interested in child sexuality
 Constantly maneuvers to get time alone or insists for such.
 Spends most of the time with children and little interest with one of his/her age.
 It eloped children by giving expensive gifts or by money for no valid reason.
 Frequently intrudes a child’s privacy
 Allow children to consistently get away with undisciplined behavior.
Teach child to trust their feelings and that is ok to say no when somebody they know and care
about them, does something they do not like, set and respect family boundaries, speak up
when inappropriate behavior is seen or reported, talk about sexual abuse and teach proper
names of body parts to children, educate children about difference between safe and unsafe
12
Lewis C. Teachers in Maharashtra Face Six Months’ Jail if They Don’t Report Child Sex Abuse to Cops. The
Times of India. 2013 Mar 4, Available at: http://www.articles.timesofindia.indiatimes.com
13
Tulir- center for the prevention and healing of child sexual abuse. THE WEEK Health. 2012.Aug 26, pp. 21-27.
Available from: www. the -week.com.
touch , children also need to understand that people they know are capable of hurting them,
encourage, affirm and acknowledge a child’s opinions and feelings-giving them a sense of
self- esteem and confidence, involve your child in setting up safety plan that is easy to
remember, make a list for yourself and child whom to call for advice, information , help.
School children and teachers should be taught about these above points.
The Justice Verma Committee suggested ways to make rape laws stronger in the country and
has submitted its report on 23 January 2013. The report suggesting amendment of criminal
law to provide for higher punishment to rapists, including those belonging to police and
public servant:
 Every complaint of rape must be registered by the police and civil society.
 It suggested that the punishment for rape should be rigorous imprisonment from 7
years of life.
 Voyeurism, acid attacks are punished by imprisonment up to 7 years in jail.
 Protocols for examination of a rape victim for sexual abuse have been suggested.
 The special procedure from protecting a person with a disability from rape and
requisite procedures.
 It suggests various measures for a complete reformation of the political and judicial
system is equally responsible for it.
Thus, there is an urgent need to review the continuance of Armed Forces Special Powers Act
and also recommends posting special commissioners for women’s safety in conflicting
Areas.14
It was approved by President of India on 2nd April 2013. The salient features are:
 It provides stringent punishment for rapist and repeats offenders; it also includes
offences such as stalking, voyeurism, disrobing and acid attacks.
 The age of consent for sex has been fixed to 18 years.
 It provides punishments for minimum of 20 years or can be extended up to life
imprisonment or death by hanging if the act causes the death of the victim or leaves
her in a permanent vegetative state. If a person found a repeat offender than there is
the provision of death penalty for them under the new law.
 Act keeps rape as a gender-specific crime where only a male can be punished for
committing such offence.
14
Verama JS. New Delhi: Ministry of Home Affairs, Government of India ; Committee Report . Available from:
http://www.mha.nic.in/pdfs/js-Verma Commitee-2013.
 The first offence will be bailable or a second one is non- bailable.
 The Act prescribed a punishment ranging from 10 years to life imprisonment if
someone is involved in trafficking a minor and a jail term of 14 years that may be
extended to life term if the offender is involved in trafficking of more than one minor.
 For an acid attack that caused harm to the victim, the offender will get a jail term of
minimum of 10 years, which can be extended to life term. An offender can attract a
penalty of 5-7 years if attempted acid attacks.
 No hospital whether the private or public can deny treatment to a rape victim. All
treatment and medical facility are should be provided as soon as possible that is free
of cost no fee was charged for it. Denial to treat the victim can result in imprisonment
up to the term of 1 year.
 It provides punishments for minimum of 7 years to life imprisonment for rape convict
if he is found to be a police officer, a public servant, armed force personnel or
management or hospital staff.
 The law seeks to amend the Indian Evidence Act to allow a rape victim to video graph
the proceedings.
There are many barriers and the victims are very young and traumatized. The police are not
well- trained to assess such sensitive and tender issue. Approach and assessment by an
investigating officer should be very friendly and they should be able to feel the trauma of
victims as seen in European countries. Their receptiveness and tender loving approach make
victims very comfortable. In India, it takes many months and years when the case comes in
court.
Reporting is a difficult and highly personal decision for many survivors. There are several
barriers in reporting cases like the incidence would prevent them from moving beyond the
experience to heal as a survivor, feel embarrassed or ashamed that they were victimized and
fear that they may be blamed for it, fear of re-victimization through the criminal justice
system. People who identify themselves as lesbian, gay, bisexual or transgender may be
afraid to report violent crimes due to homophobia and heterosexism is present in the criminal
justice and social service system fear of being identified as a member of these communities.
Cultural and language boundaries may also impact an individual’s decision to report.
Sometimes, religion is used to justify violence within relationships. Finally, the law can never
be the entire answer. One also needs to build up the political will to implement just laws. But,
framing laws and getting them perfect should not take up all our time. Sexual abuse is a
multidimensional problem having legal, social and psychological implications. Hence, team
work is required to assess and approaches the problem.
Despites these barriers and boundaries, some survivors find reporting the violence to be an
empowering experience. Others feel that reporting the violence serves as an important step in
regaining control of his or her life and continuing with the healing process. Even if survivors
choose not to report to law enforcement, it is important to go beyond and seek emotional
support for the healing process from friends, family, and professionals.
Finally, India is home to the largest child population in the world and almost 42% of its total
population is under 18 years of age. Implementing new laws, public awareness, a better
understanding of the issues and improved therapeutic approaches has not been individual
solutions. However, they have all contributed to working toward the solution. It is important
to remember that providing protection and safety for even one child is significant. The school
is singularly the best place to bridge the gap for sexual abuse victims.
Health service professionals can assist survivors in determining what reporting option may be
most appropriate according to their individual circumstances. Thus working with CSA cases
result in huge challenges to professional and effort at all level are highly needed to increase
professional’s capabilities and capacities in assisting help to victims and their families.
The problem
The child sexual abuse is an under-reported offence in India, which has reached epidemic
proportions. The study shows that everywhere it is spread as a social evil and to cure out of
that issue, is not an easy task for anyone. But to uphold it and make every effort to rescue,
prevent and protection is the only remedy available for that.
It shows in Indian context that the problem related to sex trafficking and the Sexual abuse of
children is so common as well as it is so dangerous problems of the country. Children who
are victim of sexual abuse are generally known to the offenders. So the problem of CSA
should be used in a simple and specific way that it will be more effective and strict to
implement. Legal provisions were made through implementation of the Criminal Law
(Amendment) Act, 2013, which amended the Indian Penal Code, Criminal Procedure
Code1973, the Indian Evidence Act, 1972, and the Protection of Children Sexual Offences
Act, 2012. The Criminal Law (Amendment) Act 2013, also dictates punishments on stalking,
voyeurism and disrobing, trafficking and acid attacks though the POCSO Act is a excellent
piece of legislation and it recognize almost every known form of sexual abuse against
children as punishable offence.
After this another amendment is done in, The Criminal Law (Amendment) Act 2018 a few
provision were added as to related with the degree of punishment fluctuate with the range of
age that is victim is of below 12 than the punishment is of death penalty in such case, also
with the amendment in the Indian Penal Code, Criminal Procedure Code1973, the Indian
Evidence Act, 1972, and the Protection of Children Sexual Offences Act, 2012. Having all
this but few challenges were unanswered but still it is a boon. A multi-dimensional, multi-
agency team and multi-tier approach including access to psychological support is to be made
available to deliver holistic comprehensive care under one roof for victims of child sexual
abuse.
1.1 Meaning & Definition of Child
Child is considered as a natural person, biologically, a child is a human being between the
stages of birth and puberty. There is a legal definition of child generally which refers to
a minor, otherwise known as a person younger than the age of majority15.
Child is explained who has an association with a parent (as in the capacity sons and daughters
of any age) or, metaphorically, holding figure or represent the group membership in a clan,
dynasty, or creed; it can also be based on, or indicate the specific time, place or the
surroundings as a nature of the child, and the age is the number define as "a child of the
Sixties"16.
Definition of the child
Etymologically, the term “child” comes from the Latin infants who means” the one who does
not speak. As per the Roman, the term “Child” means the stage from birth, till the age of 7
years.
This concept and belief there to derive from the centuries and cultures to finally consider it as
a human being from the stage of birth until adulthood. But such notion of the child has a very
wide range and the age of the majority or adulthood is has many manifolds from one culture
to another17.
The phrase “child” is explicitly interpreted as:

15
Child, From Wikipedia, the free encyclopedia, https://en.wikipedia.org/wiki/Child
16
"American Heritage Dictionary". 7 December 2007. Archived from the original on 29 December 2007.
17
Rights of the Child, The meaning of the child and the rights of the children see online text at
https://www.humanium.org/en/child-rights/
As per the convention, the child is explained as: “child is any human being below the age of
eighteen years, unless under the law applicable to the child, the majority is attained
earlier.18”
The idea, through this definition, is derived as an all the texts concerning child welfare are
that the child is a human being with rights and dignity. What constitutes the child; it is his
youth, exposure, and culpability. Naturally, the child is developing as a future adult, who has
not in a situation or had no means to protect him.
What is a child?
The UN Convention on the Rights of the Child defines or explains a child as every person
below the age of 18 years of age, “As per the law applicable to that State to the child, either
the majority is attained earlier" (Office of the High Commissioner for Human Rights, 1989).
The UK has ratified this convention. Yet, there are ranges of the number of different laws
prevailing all over the UK that determine age limits in different prospects. These may
incorporate child protection; an age of consent; and age of criminal responsibility.19
There were some of English definitions of the word that concluded and define the term
child that may comprise the fetus (sometimes termed the unborn) in it20. On the other hand, in
many civilizations, a child is recognized as an adult after going through a rite of passage,
which can or not be completed at the time of puberty. As in this sense, the child has to be
entitled for specific protection because here they are a prime object of interest. In this
perspective Definition of the rights of the child explains here below:
The recognition of the rights of the children
After the 1st World war, children’s rights were recognized with the adaption of the
Declaration of Geneva, in 1924. A big thank is to be given to the UN to take the action and
acknowledge for granting recognition to child rights, with the adoption of the Declaration of
children’s rights in 1959.
18
The Convention on the Rights of the Child of 1989
19
Children and the GDPR, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-
data-protection-regulation-gdpr/children-and-the-gdpr/
20
See Shorter Oxford English Dictionary 397 (6th ed. 2007), which's first definition is "A fetus; an infant;...". See
also ‘The Compact Edition of the Oxford English Dictionary: Complete Text Reproduced Micrographically’, Vol. I
(Oxford University Press, Oxford 1971): 396, which defines it as: ‘The unborn or newly born human being;
foetus, infant’.
On 20 November 1989, International Convention on the Rights of the Child was adopted and
recognizes the interest of the child and their rights as first legally binding text at the
International level with considering the all the fundamental rights on the child.21
International children’s rights
Some children rights are recognized at the international level through agreements between
governments. The European Convention on Human Rights (ECHR) and the United Nations
Convention on the Rights of the Child (UNCRC) were signed by the UK and both of which
set forth various child rights.
European Convention on Human Rights (ECHR)
An international treaty was done in 1950, to fix and arranged the rights of adults and the
children by the European Convention on Human Rights (ECHR). The Human Rights Act
1998 is an outcome of ECHR and UK laws. It can say that if a child makes a complaint to
UK court, and their rights are not provided, or the claim is rejected then the child has right to
take the claim to the European Court of Human Rights.
Rights determine in the convention comprises:
 the right to life,

 the right to be kept safe from torture and cruel treatment,
 freedom from slavery,
 the right to a fair trial,
 the right to respect for private and family life, and
 the right to an education.22
The United Nations Convention on the Rights of the Child (UNCRC)
The UK signed the United Nation Convention on the Rights of the Child, in 1990. The
Convention exhibited each and every rights of the child related to survival, grow,
participation, and they are dormant in the whole world. It fixes the guideline or the
regulations in regard to education system, health benefits, social services, penal laws and
constitute the right to say about anything which affects child dignity and life.
21
The evolution of international standards on child rights SOWC all panels.pdf
https://www.unicef.org/rightsite/sowc/pdfs/panels/SOWC%20all%20panels.pdf
22
What is the European Convention on Human Rights?, https://www.equalityhumanrights.com/en/what-
european-convention-human-rights
Wales the first country of the UK, who make the UNCRC as a part of its domestic laws as the
laws made under the Rights of Children and Young Persons (Wales) Measure 2011.23
Child rights: Human rights
Child rights are human rights, as it was species of this. They conserve the rights and the child
as a human being. On the other hand, children’s rights are constituted under the fundamental
rights of an individual provided by the state as they are the indispensable human rights.24
Children’s rights determine the fundamental guarantees of all human beings:
 The right to life,

 The non-discrimination principle,
 The right to dignity through the protection of physical, and
 Mental integrity (protection against slavery, torture and bad treatments, etc.)
Children’s rights are civil and political rights, they are the right to identity, the right to a
nationality, etc.
Children’s rights are economic, social and cultural rights, as in the form of the right to
education, the right to a decent standard of living, the right to health, etc.
Children’s rights include individual rights such can be known as the right to live with his
parents, the right to education, the right to benefit from protection, etc.
Children’s rights combine collective rights that may be considered as rights of refugee and
disabled children’s, of minority children or from autochthonous groups.
World’s Attitudes toward Children
Around the world, there were numerous social perceptive related to children that vary from
each other as the culture and the tradition changes. These attitudes have changed over time.
In a study on European attitudes toward the children shows that Italy took more care and
mostly based on child-centric version and on the other hand, Netherlands was not up to that
mark as in children context likewise Austria, Great Britain, Ireland, and West Germany
comes in that category.25
23
The United Nations Convention on the Rights of the Child, https://www.unicef.org.uk/wp-
content/uploads/2010/05/UNCRC_united_nations_convention_on_the_rights_of_the_child.pdf
24
Rights of the Child, The meaning of the child and the rights of the children
https://www.humanium.org/en/child-rights/
25
"Rachel K. Jones and April Brayfield, Life's greatest joy?: European attitudes toward the centrality of children.
Social Forces, Vol. 75, No. 4, Jun 1997. 1,239-69 pp. Chapel Hill, North Carolina". Popindex.princeton.edu.
Retrieved 9 October 2013.
To provide protection to children from sexual abuse is a prime object of the modern world.
This incorporates to assign protection to children from various exploitation and abuse such
as child labour, child trafficking, and selling, child sexual abuse, child prostitution and child
pornography, child marriage, use of children for the military, and child laundering, illegal
adoptions. There are humongous international instruments are present for these causes, such
as:
 Worst Forms of Child Labour Convention

 Minimum Age Convention, 1973
 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
 Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse
 Optional Protocol on the Involvement of Children in Armed Conflict
 Hague Adoption Convention
 European Union's Directive 2011/92/EU of the European Parliament and of the
Council of 13 December 2011 on combating the sexual abuse and sexual exploitation
of children and child pornography.26
Child rights in India
India, home to one-fifth of the world’s children, ratified the Convention on the Rights of the
Child in December 1992. Since then, rapid economic growth, averaging 4.5 per cent annually
between 1990 and 2007, has lifted millions out of poverty and combined with government
action to improve trends in child survival and development. As per to national sources, there
was fall in the national under-five mortality rate as 117 per 1,000 live births in 1990 as
compared to 72 in 2007. Use of improved drinking water sources rose from 62 per cent in
1992–1993 to 88 per cent in 2005–2006. There was a striking change were shown in the
primary school attendance rates of girls having an age of 6–10 years that rose from 61 to 81
per cent in the same period, the impact factor of that considers gender parity rate for primary
education from 0.82 to 0.96.27
Concerted efforts are yielding results
26
Official Journal of the European Union
27
Child Rifght in India, can be seen at : https://www.unicef.org/rightsite/sowc/pdfs/panels/Child%20rights
%20in%20India.pdf
The Government of India, its partners and a multitude of non-governmental organizations
have made determined efforts to reduce child deaths, expand access to health care and get
children into primary school. The country is power packed to do or to identify any loophole
where the violation is done of the laws and ready to make an effort to support and restore the
same. It is beginning to address material disparities by targeting essential services towards
marginalized groups such as scheduled castes, scheduled tribes (the indigenous peoples, or
Adivasis) and others who suffer entrenched discrimination. However, a National Commission
for the Protection of Child Rights was established by the Government in March 2007 to
observe the proper enforcement and execution of child rights. In addition, to that, an inclusive
plan named as the Integrated Child Protection Scheme has been initiated to protect indigent
or delicate children.
Challenges Ahead
Widespread and entrenched exploitation, gender discrimination, caste bias and other social
problems in India will not be overcome overnight, and it is uncertain how the global fuel,
food and economic crises will affect the country’s social progress. Yet there are three fragile
issues are underlying, that is a grave risk to the country, it will increase the share of people
who live in the poverty, it will slow down and even hinder the gains of child survival, health,
and education.
The Government of India and other stakeholders are working towards fulfilling child rights –
and young people themselves are voicing their priorities and embracing community
involvement. It is very difficult to regularly participate and make the leadership of this
movement as to human progress in India in the coming years.28
1.2 Concept of Offence
In general language, a crime is to be stated as an unlawful act punishable by the state or other
authority29. The term "crime" has a simple definition, in modern criminal law, which is
universally accepted30, yet judicial definitions are also there to accomplish certain purposes31.
In a most suitable form the crime is categorized by the law, or in another sense provision
declare and propagate by the land of laws on the relevant social issue of the society are
28
https://www.unicef.org/rightsite/sowc/pdfs/panels/SOWC%20all%20panels.pdf
29
"Crime". Oxford English Dictionary Second Edition on CD-ROM. Oxford: Oxford University Press. 2009.
30
Farmer, Lindsay: "Crime, definitions of", in Cane and Conoghan (editors), The New Oxford Companion to
Law, Oxford University Press, 2008 (ISBN 978-0-19-929054-3), p. 263 (Google Books).
31
In the United Kingdom, for instance, the definitions provided by section 243(2) of the Trade Union and
Labour Relations (Consolidation) Act 1992and by the Schedule to the Prevention of Crimes Act 1871.
considered as crime.32One of the proposed definitions explains that the crime or offence (or
criminal offence) is an act harmful not only to some individual or individuals but also to a
community, society or the state ("a public wrong"). Yet the acts are prohibited and culpable
by law33.
Acts like murder, rape and theft are to be considered as criminal acts which are punishable
but on the other hand, it exits globally 34. What conclusively consist of a criminal offence is to
be defined and explained by the criminal law of each and every individual country. In spite of
that many countries have binding text on the issue of crimes can be called as the criminal
code, or whereas in some common law countries there is no such extensive laws or absolute
statute prevail.
The state and their government have the capacity to autonomously restrain and restrict one's
freedom to commit a crime. In modern civilization, there are listed and written procedures to
which investigations and trials must comply. If an accused found guilty, may be sentenced in
the form of reparation like as providing services community as in community sentence or it
totally depends on the nature of the offence, either to undergo imprisonment, life
imprisonment or, in some jurisdictions, and execution.
Usually, crime is to be classified as, the "act of doing something criminal" (actus reus) that
means a planning is done with such malice intention, must – with certain exceptions – be
accompanied by the "intention to do something criminal" (mens rea) it is consider that in the
effect of the planning some action must be taken 35.
While every crime violates the law, meanwhile it is not necessary that every violation of the
law be considered as a crime. For example, breaches of private or personal law (torts and
breaches of contract) are not conclusively or automatically punished by the state, but they can
be enforced through civil procedure.
Richard Quinney, the sociologist has pointed out the relationship between society and crime
in texted form. He further explains "crime is a social phenomenon" he conceptualizes how
32
Farmer, Lindsay: "Crime, definitions of", in Cane and Conoghan (editors), The New Oxford Companion to
Law, Oxford University Press, 2008 (ISBN 978-0-19-929054-3), p. 263 (Google Books).
33
Elizabeth A. Martin (2003). Oxford Dictionary of Law (7 ed.). Oxford: Oxford University Press. ISBN 978-0-19-
860756-4
34
Easton, Mark (17 June 2010). "What is crime?". BBC News. Archived from the original on 27 February 2013.
Retrieved 10 June 2013.
35
Elizabeth A. Martin (2003). Oxford Dictionary of Law (7 ed.). Oxford: Oxford University Press. ISBN 978-0-19-
860756-4
the individuals perceive crime and how the populations assume it, always based on societal
rules, norms, and regulations36.
World History
The word “Crime” is imitative from the Latin origin “cernō”, meaning "I decide, I give
judgment". Latin word “crīmen” originally means "charge" or "cry of distress 37."The
Ancient Greek word krima (κρίμα), the Ancient Greek word, referred to an intellectual
mistake or an offense against the community, rather than a private or moral wrong, it was
derived by the Latin cognate.38
Definition
As to define the concept of crime there were definitions that show it is not necessarily the act
or the omission conclude the crime but it only suggests that something is happening or not
but it was recommended and supported by the legal procedure as per the situation or the
condition.39 The predefine procedure is followed as per the position and the condition of the
cases and such procedure is to be named as criminal proceedings or trials.40
Law maker are on the duty to pass laws (called mala prohibita) that explain the concept of
crimes that are social evil or against the society. The laws made by the legislation are
different with the time or with changes in the place: like changes in gambling laws as for
example, as per the history, there were signs of prohibition and encouragement also that are
depending upon the tradition of the country. Whereas, other crimes named as (mala in se)
consists of (murder, theft and rape, for example) prevailed in almost in all the societies.
As per the English criminal law and the related criminal law of Commonwealth countries
may prescribe offences, as there were courts were developed with the time, without having
any existed legislation for the common law offences. Courts used the concept of malum in se
to make the various common law offences41.
36
Quinney, Richard, "Structural Characteristics, Population Areas, and Crime Rates in the United States," The
Journal of Criminal Law, Criminology and Police Science, 57(1), pp. 45–52
37
Ernest Klein, Klein's Comprehensive Etymological Dictionary of the English Language Archived 2016-03-22 at
the Wayback Machine
38
Bakaoukas, Michael. "The conceptualisation of 'Crime' in Classical Greek Antiquity: From the ancient Greek
'crime' (krima) as an intellectual error to the christian 'crime' (crimen) as a moral sin." ERCES ( European and
International research group on crime, Social Philosophy and Ethics). 2005. "Archived copy". Archived from the
original on 2011-09-28. Retrieved 2011-06-27.
39
Seaman v Burley [1896] 2 QB, per Lord Esher MR at 346
40
Glanville Williams, Learning the Law, Eleventh Edition, Stevens, 1982, p. 3; Chapter 1 of "Smith and Hogan's
Criminal Law" (13th Ed by Ormerod) discusses the various proposed definitions of "crime" in more detail.
41
Canadian Law Dictionary, John A. Yogis, Q.C., Barrons: 2003
History
As history shows that some of the religious communities consider crime as sin, or some of
them emphasize crime is a sin as per the mythological belief or as the effect of the legendary
accounts. For this, we can reconcile the tale of Adam and Eve and their theory of original sin.
As per this theory what is considered by one group on crime may be consider as “cause of
action” or lit a fire for war. Nevertheless, in primitive civilization, there were laws and
regulations including civil and criminal laws altogether in a mixed forms, however not
necessarily in recorded form.
Sociology
There are standardizing definitions of crime is define, crime may be acknowledged as

wandering behavior that contravenes the pre-exists rules like cultural ethics, that display a
role model of how human should behave normally. By this way, it becomes easy to identify
the actual complications of the community and the notion of crime and follow to perceive
social, political, psychological, and economic condition. Such situation may impliedly affect
the definition of crime from the legal point of view and law enforcement forces and penal
reaction made by society.
These structural basic realities remain fluid or and often contentious. For instances: there
were cultures change and the political environment alter, societies may inspect certain
demeanor in either criminalize or decriminalize way, that which precisely influence the
demographic crime rates, control the distribution of resources for the implementation of laws,
and dominates the general public opinion and will.
Correspondingly, alteration in the compilation and/or calculation of data on crime may

induce the public idea to the extent of any given "criminal problem". Such arrangements are
dependent on the statically study associated with the daily life experience of people, and
shape the mindset to the extent, that helps to State be apply laws and social engineering
The arrangement of criminal statistics combined with the involvement of the people as
everyday lives, to configure the State laws in that dimension with the execution and
encouragement of the laws build in conformity of the specific social laws. Conduct of the
individual entity possibly control and determined by the society several ways without
changing the existing criminal justice system.
Certainly, where no precise or clear agreements on present norms are there, may empower the
drafting authority to restrain the rights of another group by imposing limitation. It may
retrench the freedom of other groups and also there were less appreciation and consideration
of the law or laws in general if the supremacy or the judicature in fact implemented the
contradicted law or not.
Age of responsibility
The term age of responsibility is considered the age when the child is considered responsible
for societal actions like marriage and voting. The criterions of age are altering with the
development of the world and reflect their existence or treatment in the courts of law. At
Roman times children were not contemplated, held responsible, and guilty for the crimes, this
belief subsequently adopted by the Church. In the 19th century, children below the age of
seven years old were assumed to be not adequate to conduct a crime. Children above the age
of seven or more were held accountable for their conduct. Consequently, they may have
criminal charges against them, sent to adult prison, punished like adults in a way like
whipping, branding or hanging42. At present times, in many countries like Canada and the
United States, children at or above twelve years of age are held accountable and answerable
for their actions and sent to special correctional institutions like the juvenile homes.
As per the above discussion, we can conclusively say that there were many factors that are
required to combine the offence and such offences are have many types as per there forms,
their punishment or as per there gravity or as per their behavior per interest. Such
categorization is here shown.
Categorization by type
The certain classes of offences are used, or have been used, as legal terms of Law:
 Offence against the person43

 Violent offence44
 Sexual offence45
 Offence against property46
Researchers and commentators have distinguished crimes into the following categories, in
addition to those above:
42
Fikadu Satena. "Juvenile courts". Law.jrank.org. Retrieved 9 October2013.
43
For example, by thex Visiting Forces Act 1952
44
For example, by section 31(1) of the Criminal Justice Act 1991, and by the Criminal Justice Act 2003
45
For example, by section 31(1) of the Criminal Justice Act 1991, and by the Criminal Justice Act 2003
46
For example, by the Visiting Forces Act 1952
 Forgery, personating and cheating47
 Firearms and offensive weapons48
 Offences against the State, against the Crown and Government49, political offences50
 Harmful or dangerous drugs51
 Offences against religion and public worship52
 Offences against public justice53, offences against the administration of public
justice54
 Public order offence55
 Commerce, financial markets and insolvency56
 Offences against public morals and public policy57
 Motor vehicle offences58
 Conspiracy, incitement and attempt to commit the crime59
 Inchoate offence
 Juvenile delinquency
 Victimless crime
Categorization by penalty
Offences can be categorized on the basis of the punishment there too, and it totally depends
upon the gravity and seriousness of the offences. Like if there is the only provision of fine or
non-custodial punishment than the offence is not so crucial. In spite of that if there is a
proviso for the life imprisonment and fine or capital punishments that the matter is of the
serious in nature.
Classification on the trial basis
Offences can be classified on the mode of trial: that is related to Causes and correlates of
crime that may be varied as per the degree or the gravity of the observed support system.
47
E.g. Archbold Criminal Pleading, Evidence and Practice, 1999, chapter 22
48
49
50
E.g. Card, Cross and Jones: Criminal Law, 12th ed, 1992, chapter 17
51
52
53
54
E.g. Card, Cross and Jones: Criminal Law, 12th ed, 1992, chapter 16
55
56
57
58
59
There were socioeconomic, psychological, biological, and behavioral influences to deal with
the cases. Controversial issues pressurized by the media and affect the inner politics.
From the above such categorizing here, we can concentrate into the following classes of
offences are used, or have been used, as legal terms of laws as
 Offence against the person

 Violent offence
 Sexual offence
 Offence against property
Offence against the person
As per the criminal interpretation, an offence against the person is generally referred to the
crime which right away related to physical harm or use force to being appllied to other
persons. They can be categorized further in this form.
 Fatal offences
 Sexual offences
 Non-fatal non-sexual offences
 Assaults
 Injuries
 Murder
 Manslaughter
 Non-fatal non-sexual offences
 Assault or common assault
 Battery or common battery
 Wounding or wounding with intent
 Poisoning60
 Assault occasioning actual bodily harm (and derivative offences)
 Inflicting grievous bodily harm or causing grievous bodily harm with intent (and
derivative offences)61
60
Often referred to as administration of a noxious substance in legal parlance.
61
Some legal systems have two separate crimes: occasioning grievous bodily harm, and intentionally inflicting
grievous bodily harm.
While, in general, most of the sexual offences are the offences against the person 62, for
certain reasons such as sentencing and registration of offence and the offenders. Sexual
crimes are commonly classified distinctly. Similarly, although many homicides also involve
an offence against the person, they are usually categorized under the more serious category.
Violent Crimes
Violent crime contemplated crimes though in which the offender uses force or threatened the
victim with an object to contemplate the violence like the murder in which violence and
crimes end with motive. Violent crime either commit with or without the weapons. From
homicide to harassment all of them collectively consider violent acts or the crime. The types
of violent criminal can be generalized as a murderer, terrorist, aircraft hijacker, kidnappers,
rapist, bank robbers, gangsters, drug gangs.63
Sex and the law
To channelize the human’s sexual activity in general, there were rules and regulation to deal
with the issue of Sex with the primitive norms of the laws. Such laws transform in a different
way as to change in the place, jurisdiction and with the development of the society.
Sexual laws govern the sexual activity of individual with the intent to protect one or all the
participants. While, on the other hand, is also designed to forbid the moral, social or religious
conflicting issue affected by it. Unlawful sexual acts also consider as sex crimes. Law has the
power to condemn the act that is listed here
 unprotected sex if one person knows that he or she has asexual disease
 to protect a minor
 non-consensual sex
 because of a relationship between the participants
As, from the above it was inference that laws may banish the any sexual activity that are
sexual abuse, behavior that inappropriate as per societal norms. Unwanted sexual contact or
favor in between two or more adults, between an adult and a minor or with two or more
minors, and as based on laws with cognizance to age of consent, sexual contact are consider
as sexual abuse
Definitions
62
For example, it would be legally impossible to rape another person without also committing a battery against
them
63
Violent crime, From Wikipedia, the free encyclopedia, https://en.wikipedia.org/wiki/Violent_crime
Sex crimes are one of the forms of human sexual behavior that are considered crimes. One
who commits is acknowledging as a sex offender. While in some crime, when sex is used it
comes in the category of sex crimes. Some of them are to be recognized as the contravention
of social taboos, incest, sodomy, indecent exposure, exhibitionism. There are many
fluctuations among cultures as to what comes in a crime or not, and in what ways or in which
extent crimes will be punished.
Generally, in many countries the law is there to arbitrate the sexual movement associate
young children or adolescents do not attain the age of majority, or below the age of consent,
without consent sexual relationship, intentional displaying of sexual activity, sex with person
under prohibition degree (incest), harm to animal in sexual way, sexual activity involving
deceased (necrophilia) also accompanied by harassment, nuisance, fear, injury, or assault of a
sexual nature, and there is always a grave risk and danger of abuse of certain professional
relationships. Along with that laws are there to manage and control the censorship of obscene
or pornographic items.
Possible enforcement
Here are listing some of the categories that contain illegality in the roleplay with an agreed
partner of constitutional age in some of the jurisdiction.
 Child sexual abuse

 Exhibitionism
 Frotteurism
 Human dealing
 Incest between close relatives
 Necrophilia
 Ownership of sex toys
 Paraphilia (deviancies)
 Pornography
 Prostitution
 Public urination
 Rape under marriage
 Rape,
 Sanctioned rape
 Sex with animals
 Sexual favor by the people who have the position of trust
 Sexual harassment
 Sodomy
 Stealing underwear
 Streaking
 Telephone scatologia,
 Transvestitism
 voyeurism,
To protect children from sexual offences there were a variety of sexual laws present in the
legal system with the aim to provide a hassle-free nation. There were “corruption of
minors” by commencing the improper document related to age specifically in the sexual
matters. In this context, it includes the laws relating to
 Age of Consent laws,

 laws prevent from the exposure of children to pornography or obscenity,
 laws making it a crime for a child to be involved or exposed to
 laws against child grooming, the production and ownership of child pornography
Age of consent
Phrases like “Age of Consent” and “Statutory Rape” are not specifically designated in the
legal statues,64 but such term be used in the sexual acts, in relation to consent the majoring
role is of the age, that should be legally enough to contest sexual activity. Age of consent is
not to be merged or consider as the age of majority, minimum age criteria for marriage.
The issue age of consent like changeable as per one jurisdiction to another jurisdiction. The
general concept of age ranges from 16 to 18 years but as in the eye of laws, it was ranged as 9
to 21 years of age. In fact, in most of the legislation, the age of consent is considered as the
mental age or functional age65, the victim can be of any age if the mental level is not as per
the age or below the age of consent66, in such cases age is just a number.
64
Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan.
ISBN 978-1-4039-2173-4.
65
Archived from the original on 2013-06-05. Retrieved 2013-06-30. [1][permanent dead link] "Archived copy".
Archived from the original on 2013-06-05. Retrieved 2013-06-30. [2
66
Archived from the original on 2007-10-12. Retrieved 2007-10-12. [4][permanent dead link] "Archived copy".
Archived from the original on 2013-06-05. Retrieved 2013-06-30. [5] [6]
In some domination sexual activity besides or before the legal marriage is banned. The age
may vary as per the sexual act, on the factor related thereto or as any other restriction
imposed by as in the capacity of trust.
Incest
Incest means any sexual activity in close relatives or in the prohibited degree which is illegal
in many jurisdictions, though this concept of incest may alter as per the different jurisdiction
as well as on sexual acts. If the relationship is of affinity through adoption then the activity
also comes in this category. As in the laws, the sexual activity generally limits the action up
to sexual intercourse, as the nomenclature fluctuates, or in either, they consider it’s like
penal–vaginal sexual intercourse. Carnal sexual activities are confined unlawfully without the
consent of the parties and their age. Such type of norms also applies to the marriage of the
people in the prohibited or restricted relationship.
Female genital mutilation
Female genital mutilation (FGM), are a traditional as well as a customary concept, that
basically removes the genitals of a human being, to preach the male domination. On average,
125 million girls and women have faced this problem named FGM in this global world. 67
Such practices are generally done to control the sexual behavior of girls along with that they
observe it makes improvement in the appearance of genital as in the aesthetic view 68. The
World Health Organization (WHO) is one of them, who started the campaign against the
issue stating FGM on account of human rights, and mention that "FGM has not useful for
health" and it is "a contravention of the human rights of girls and women" and "shows the
inherent existing inequality between the sexes.”69
In many countries FGM is prohibited70, it may follow the prohibiting procedure on its citizens
or as well as residents outside the jurisdiction 71, in New York FGM is considered a sexual
offence as in the State Penal Law.
67
Payne, Richard (2017). Global Issues: Politics, Economics, and Culture. Pearson Education. p. 164. ISBN 978-0-
13-420205-1.
68
Koroma, Hannah (30 September 1997). "What is Female Genital Mutilation?". Amnesty International.
Retrieved February 5, 2013.;"Female genital mutilation". World Health Organization. Retrieved August 22,
2012.
Momoh, Comfort (2005). "1: Female Genital Mutilation".; In Momoh, Comfort. Female Genital Mutilation.
Radcliffe Publishing. pp. 5–11. ISBN 978-1-85775-693-7. Retrieved November 17, 2012.
69
"Female genital mutilation". World Health Organization. Retrieved August 22, 2012.
70
Laws of the world on female genital mutilation
71
Laws of the world on female genital mutilation
In the present chapter we here study the definition of the child with different view and
understand the meaning of child, is not always the number of age but some time the condition
of person with the references of certain convention prevail in the world. Highlight the
situation, the problem and the challenges that need to evaporate from the society with the
development of the society. Along with that channelize the concept of offence as according to
the world history, sociology of crime with the reference of the concept of age of
responsibility. Here we classify the crime as per the type, penalty, and punishment, offence
against human, violent crime and sex and law with the situation in the Indian society.
Understand the serious issues along with providing the proper cure in the form of security,
health life and livelihood.
Importance of the study
Sexual violence against children not only has damaging and long –term impact on the victim
but also affects the family, community and society. Like any other crime that continues to go
unchecked, sexual violence against children whether within or outside their homes or as an
organized trafficking network directly reflects the health of society as a whole.
An Objective of the Study
 To study sexual abuse against children from Ancient Age to the Modern ages.
 To study the law relating to the sexual offence against children prevailing in India
 To examine the various provision of the POCSO Act of 2012To study the
International instruments relating to sexual offences against children in India
 To study the Law relating to the Sexual offences prevailing in other countries
Hypothesis
The legislative framework for combating sexual offences against children in India is adequate
to deal with all the offences but authorities are failed to implement it effectively due to which
no deterrence in the society.
Methodology
The reliability and dependability of and study mainly depend upon the methodology adopted.
The study is mainly doctrinal. The doctrinal study is based on secondary data gathered from
various sources such as Books, Journals, Magazines, Newspapers and Law Reports. A
quantitative study of various judgment disposed of by the Hon’ble Supreme court in India has
been attempted.
Scheme of the Study and Its Presentation
Chapter -1 entitled “Introduction” deals with brief overview introduction about the topic- the
problem, research objective, hypothesis and methodology adopted and along with that
explain the meaning and definition of a child with reference to reorganization of child rights
at global stage or specifically in Indian culture with the challenges related to or in the next
part deal with the concept of offence with the study of world history of offence, sociology of
offence, classification of offence on certain grounds, sex and law and its features, and
conclusion.
Chapter -2 entitled “History and Development of the POCSO, Act” which explain the need
of the act, with special reference to the convention on Children like UNCRC, UN declaration
of Child Rights, with the use of Restorative Justice Program, and Right based National Child
system. Historical background of Child Rights in India or the national policy system executes
it at provincial level and networking with experts or NGO’s. A comparative study of the laws
of other countries like U.S.A, U.K. Later part commencing with the brief introduction child
sexual abuse in India, history in the form of during the ancient period or colonial period and
after independence till the enactment of the POCSO Act, with the journey of legislation
through cases, and the position of law before the enactment of the act and after the act with
the reference to the existing provision to the Act, and Conclusion.
Chapter 3 entitled “Sexual Abuse” with reference to what is sexual abuse is explained by the
definition of certain type of sexual abuse along with the classification of sexual offences,
forms of child sexual abuses here we deal with the certain categories of sexual abuses with
the special emphasize on the indicators and effects of sexual offences and who are the
offenders explain certain type of offender and their behavior or tendency towards children,
along with the casual factors of it, and Conclusion.
Chapter 4 entitled “Role of Other Bodies” that has divided into two parts that are the Role of
the government body that is authorities like the government department, commission either
national or state, government policy, judiciary, police, doctor, and institution or schools that
explain their working, duties, functions challenges and responsibility toward the children in
their respective system under the law and another one is the Role of NGO’s that deals with
the features, policy to protect children, train and support the person related there with, follow
the guideline along with make recommendation resulted from the dealing of cases, and
Conclusion.
Chapter 5 entitled “Legal Aspect of the Act” which include the Provision of the Act starting
with Introduction, objective of enacting this special piece of legislation, difference from other
offences recognized in different act, various stakeholder that is media, public to register
complaints, investigation, judicial process, limitation of Act and Analytical study of the data
collected from different sources to explain the various factor like crime reported, gender
difference, registered cases , settled cases in the emergence of the POCSO Act. Along with
the analysis of the fund distributed to State for the execution and interpretation of the Act.
Also shed the light on the cases that are collected from various sources like Supreme Court
Cases, or cases as according to the problem or through the internet and studied there on.
Chapter 6 entitled “Socio–Legal Impact of the Act” that can be simplified in the two streams
that are merits and the demerits of the act on the society with a different perspective like the
provision related to reporting, age, consent medical help and there on, and conclusion.
Chapter 7 entitled “Conclusion and Suggestion”, which concludes for the complete
dissertation with along with few effective suggestions for the effective implementation of the
Act.
Chapter 2
History and development of the act
For the expansion of society sexual act have their own role as to develop community. It is the
basis of the growth, development or enlargement of the family. On the hand, these have to
regulate by laws because they have their own prone and cones. Sexuality includes violence
that means sexual abuse, incest or any other illegal sexual behaviour and certain privilege
relationship.
Laws are here exists to characterize the activities of the society, is that the act socially
acceptable in the existing society or not, if not than prescribe the circumstance and their
punishment too. Such laws are varying country to country and it continues to be contested,
repealed and reenacted across the globe.
As in our concern violence related to children has no boundaries of race, geography, class,
religion and culture. It can occur anywhere that may be home, school, street, working place,
market, entertainment, in the care centre and in detention. Prepator includes parents, family
member, teacher, neighbor, friends, caretaker, law enforcement authorities or anyone.
A range of laws is used to stop certain sexual behavior including homosexuality, rape,
modesty, stalking, voyeurism, sodomy, sexual abuse, sexual harassment, sexual abuse of the
child and child trafficking. Prevailing laws also punished the people related to such offences,
attitude or identities by precisely criminalizing or ingrain the discrimination that divests the
economic and social rights and approach to justice.
2.1 Need of the Act
To distinguish the three approaches that are known as wants, needs and rights, these three
dimensions prima facie resemble the same or linked to each other, but in reality, all of them
have their own specific mean in their operation or in the denotation.
A “need” is something base structure or a basis for being alive, that is water, food, shelter,
work and money. A “Want” is something that a desire to have but don’t have or get, that can
be anything like phone, T.V. and clothes. Wants and Needs are varied to the person to person
as belongs to their community, class, race or origin but rights are on the other hand are
common to all.
All persons have rights irrespective of their age, cast and sex. Every child has rights no matter
which religion, state or community they are from or belong to, how old are they all have the
same rights.
All wants are not needs. The thing that are “Wants” but not “Need” is called desirable but not
necessary of survival for example games, toys, laptop, T.V. and A.C. Rights are non-
negotiable they are legal entitlements organize by the government. The government is bearers
and conveyor of the rights of the children. They have a liability to fulfil them.
Accordingly, a revolution is made for “what is child right” or “what is need of child” in the
world. “Rights” are considering as the duty of the government, to conform the laws and it is
mandatory to accomplish the debt for the person.
In that effort, states have primary duty for protecting, preventive or respond to the violence
against children. States afford the convention on rights of the child and other treaties which
provide the assurance that child either girls or boys, anywhere has a right to live free from
violence. For this action must be taken from all the sectors that include health education,
labour, justice, and equality at every level that means local, national or international.
In spite of this major role of civil society, group and individual entity have a paramount role
to play. The UN commission and their parts firmly devoted to this work. There is a list of
child rights and UN adopts the convention of rights of the child because they felt their duty
towards the child and makes such exclusive laws related to the child for their protection,
upliftment, education, health and dignity.
Evolution of Children’s Rights and UNCRC
Year Developments
1914-18 First World War
1919 Save the Children Fund
1924 League of Nations Concedes to Child Rights
1948 The Universal Declaration of Human Rights
1959 Acceptance of Right of the Child.
1978 Poland demanded for creation of Child Rights in the background of past
and present situation of children
1979 International Children’s Year. Committee on Child Rights Starts
Functioning
1989 United Nations adopts Convention of Rights of the Child (UNCRC)

1990 World Leaders’ Summit
1990 CRC – an International Law
1992 India Signs and ratified CRC
1997 India submitted First Country Report to UN Committee
2000 UN Committee reviews India’s First Report

Articles on UNCRC
The Convention on the Rights of the Child is the first and foremost conclusive mandatory
international convention to include the entire area of human rights that are categorized as
civil, cultural, economic, political and social rights. The Conventions delineated these rights
into 54 articles and two Optional Protocols.72
Right is something you have as a person or as an entity, for example, the right to an
education, or right to breath or, the right to life. Every child, no matter who they are, where
they live or what they believe in as have on world graph has the right to grow up safe, happy
and healthy. To incorporate this idea in 1989, on the globe, the world leaders as in the official
capacity sanctioned the human rights for the all the children, young people who are under 18,
in the form of signing the instrument named the UN Convention on the Rights of the Child.
The UNCRC is an agreement between countries which sets out or made out the basic rights
all children should have. Almost every country in the world is agreed to it, apart from the
United States and Somalia because has not signed the agreement.
The bundles of rights of children covered in the Convention are:
1. Right to Survival: It means that rights that are essential to have for endurance
such as child’s right to life and the basic needs that are necessary for the existence,
such as pure water, nutrition, shelter, an adequate living standard, and access to
medical services.
2. Right to Development: It includes the right to education, play, leisure,

cultural activities, and access to information, and freedom of thought, conscience and
religion. By this, the children have growth on his terms and get the knowledge of all
social activities.
3. Right to Protection: This right will ensure that children are safeguarded
against all forms of abuse, neglect and exploitation, including special care for refugee
children; protection in the criminal justice system; prevention for children in
employment; protection and rehabilitation from any kind of exploitation or abuse.
4. Right to Participation: This right is surrounded by the children's freedom to

express and share their opinions, give liberty to say in the matters which affect their
own lives; these rights empower them to join associations and to assemble peacefully.
Capacities were developed in children with the intellectual aspect; children always
have an increasing opportunity to participate in the activities of society, in the making
of adulthood.
The UNCRC includes 42 rights given to all children and young people. Five important rights
are:
• The right to a childhood (including protection from harm)

72
The United Nation Convention on the Rights of the Child, with the Preamble and 54 articles, was adopted by
the U.N. General assembly on November 20,1989 and came into force on September 2, 1990 .for the online
text , see the United Nation Web site, http://www.un.org/overview/rights.html
• The right to be educated (including all girls and boys completing primary school)
• The right to be healthy (including having clean water, nutritious food and medical
care)
• The right to be treated fairly (including changing laws and practices that are unfair on
children)
• The right to be heard (including considering children's views)
UNCRC is the widely established, authenticated treaty in the history of human rights. In
addition to this, it is the conclusive and confining charter which includes the complete
element relating to the prevention and protection of the children.
The main motto of such intention lies in this statement, these are our rights and together we
must make sure that every child and young person in India and across the world have the
opportunity to grow up in a safe, happy, clean and healthy environment. The respective
governments must have to report to the United Nations on the progress they made, it has to be
explained in the meetings on the rights of child outlined in the UNCRC.
Each and Every right mention in the Convention is deep- rooted with the human dignity and
peaceful- harmonious development of every child. The prime object of the Convention is to
protect children’s rights by settle and managed the standards in the field of health care,
education, legal, civil and social services. States parties to the Convention have an obligation
to make and develop the policies based on such a principle in their specific area or to
undertake all actions in the spirit to secure the best interests of the child.
Optional Protocols to UNCRC
In 2000 the General Assembly of United Nations adopted the two Optional Protocols (OPs)
to the Convention to increase the protection of children from involvement in armed conflicts
and from sexual exploitation.
1. Optional Protocol on the Involvement of Children in Armed Conflict
It is the state duty to prevent the children below the age of 18 years of age not to join or to
take part in the practice of animosity, they are not so liable to be recruited into armed forces,
and if there any voluntarily services are there, it must comply with the provision of the
protocol. On 15 Nov 2004, India signed the OP and on 30Nov2005 ratified it73.
2. Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
The OP alarms the state to take the step in the direction to provide protection and prevention
to children from sale, prostitution, pornography.74 States should change the proviso as in the
penal provision or create new acts to comply with the new laws and their legal system covers
73
CHILD Protection & Child Rights » VII. International Mechanisms » United Nations » United Nations »
Optional Protocols, for online text see http://childlineindia.org.in/Optional-Protocols.html
74
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and
child pornography, Adopted and opened for signature, ratification and accession by General Assembly
resolution A/RES/54/263 of 25 May 2000 entered into force on 18 January 2002 for online text see the web
site https://www.ohchr.org/en/professionalinterest/pages/opsccrc.aspx
a minimal number of punishments for the provisions such as the sale of body parts,
employment, and prostitution. Every state is duty bound to submit their reports, after two
years of ratified the OP. On 15 Nov2004, India signed the OP and on 16Aug 2005 ratified it.
3. Third Optional Protocol to the Convention on the Rights of the Child on a

communications procedure (OP3CRC)
This OP provides the facility to children to submit complaints regarding the violation or the
rights granted under the convention or above two OP. Such Protocol is opened for all in 2012,
who will enter into have forced upon ratification by the 10 UN Member States.75
It is mandatory for all States parties to submit their regular reports to the Committee
regarding the working that, how the rights are being implemented and executed for meeting
the ends of justice. States must report initially two years regularly after acceding or
incorporating with the terms of the convention and then in every five years. The Committee
examines and scrutinizes each and every report and addresses to their sate about their
concerns and recommendations to the State party in the form of “concluding observations”.
Universal declaration of Human Rights 1948
The universal declaration of human rights consists of articles in which two articles,
specifically associated with children.76 Such as explain here, in Article 25(2) states:
“motherhood and childhood are liable for special care and support. All children either born in
or out of wedlock shall have and enjoy the same social protection.”77 Article 26 deals with the
right to education. Thus, education is to be free, at least in the elementary and fundamental
stages; elementary education is compulsory. “Education directly affects the development of
the human personality and also strengthens the respect for human rights and fundamental
duties.” Still, it is the duty and rights of the parents to choose the field and the area of
education that is appropriate for their children.
Declaration of the Rights of the Child, 195978
In the “Declaration of the Rights of the Child”, the General Assembly announced that
children may have a happy childhood for the sake of their own welfare or for the good of the
society. Here they introduce rights and freedom levied upon the parents, men and women as
in the capacity of individuals. Liability is also levied upon the voluntary organizations, local
authorities and national Governments to acknowledge such rights and endeavour for their
adherence by legislative and other standards increasingly taken.
75
Optional Protocol to the Convention on the Rights of the Child on a communications procedure, Adopted
and opened for signature, ratification and accession by General Assembly resolution A/RES/66/138 of 19
December 2011 entered into force on 14 April 2014, for online text see web site
https://www.ohchr.org/EN/ProfessionalInterest/Pages/OPICCRC.aspx
76
The Universal Declaration Of Human Rights, with a Preamble and 30 articles, was adopted by the U.N
.General Assembly on December 10, 1948. G.A.Res.217 A (III), U.N. Doc. A/810 at 71 (Dec. 10, 1948). For a
online text, see the United Nation Web site, http://www.un.org/overview/rights.html
77
This gives no recognition, however, to the role of fatherhood, and the twinning of the exclusive role of women
and children continues to respond throughout international law.
78
Declaration of the Rights of the Child , with a Preamble, drafted bt the UN Commission on Human Rights and
was adopted by the U.N. General Assembly on November 20, 1959. Declaration of the Rights of the Child G.A.
res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959). For a online text, see the
http://www.cirp.org/library/ethics/UN-declaration/
1. The child must be provided essentials resources that are required for the development
of both materially and spiritually;
2. The child who needs services must be provided that if he is hungry must be fed, if he
is sick must be nursed, if he is backward must be helped, if delinquent must be
recover, and the orphan and the walkout should be sheltered and nurse
3. The child is one who needs to receive relief in times of agony;
4. The child must have skills to earn a livelihood, and also protected against every form
of exploitation and abuses;
5. The child is brought up in the awareness that he has talents and his talents can be
dedicated to their companion.
UNICEF and Child Rights

UNICEF adopt the phrase “ child protection” to invoke the prevention and to respond the
violation, exploitation and abuse against the children that includes trafficking, commercial
sexual exploitation, child labor, marriage and likewise noxious usage, customs and traditional
practices.79
UNICEF’s child protection programs also target children who are uniquely vulnerable to
these abuses; such as when living without parental care, in conflict with the law and in armed
conflict. Violations of the child’s right to protection take place in every country and are
massive, under-recognized and under-reported barriers to child survival and development, in
addition to being human rights violations.80
Children who suffer violence, exploitation, and abuses may have a risk to their life, physical
and mental health, educational issues, displacements, homelessness, loneliness and have poor
parenting techniques in their later life.
To provide protection to the children is marring issue of each and every country and it is the
prime object of UNICEF. All the international treaties and Convention on the Rights of the
Child are intended to protect the children from the harm. UNICEF is escorted by the
prevailing international structure to regularize the rights of children in standard forms, along
with the rulings and schemes decided by the United Nations intergovernmental bodies.
A Vigilant Environment for all Children
To ensure the children rights that are right to survival, development and well being is an
essential aim of UNICEF to prevent and protect the children from the violence, exploitation
and abuse and respond against them. The perception and object of UNICEF construct a
protective environment, where every one is free from violence, exploitation and abuse. It
prime object to provide a healthy childhood, with the family here laws are there to provide
79
https://www.unicef-irc.org/portfolios/general_comments/CRC.C.GC.13_en.doc.html
80
Child Protection In India, updated on August 22, 2013 online text can see on
http://unicef.in/Story/190/Child-Protection-In-India
services to provide protection and rehabilitation. Along with that it also notifies the risk
factors and strengthens or support the children own vitality.81
This channel is human rights-based, and insists on the protection, prevention together with
accountable for the governments. Such vigilant condition indulge in the two vital sides such
as
 Strengthening of National Systems

 Social Change
That explicate into the following 8 key design:
1. Governmental commits to fulfilling protection rights that include social welfare

schemes, decent budgets, publicly acknowledgement and approval of international
instruments.
2. Legislation and enforcement conclusively include an adequate legislative framework,

its consistent implementation, accountability and a lack of impunity.
3. Attitudes, traditions, customs, behavior and practices: includes social norms and
traditions that condemn injurious practices and support those that are protective.
4. Open discussion about the engagement of media and civil society, it acknowledges
silence as a major barrier to securing government undertakings, supporting positive
practices and ensuring the involvement of children and their families.
5. Children’s life skills, knowledge and participation mean it can provide own
protection by using knowledge of their protection themselves, rights and ways of
avoiding and respond to the risk of abuse that may include children, both girls and
boys.
6. The capacity of person who is in contact with the child may include the knowledge,
motivation and support needed and provided by families or by community members,
teachers, health and social workers and police, for the protection of children.
7. Basic and Targeted Services that combine the elementary social services, health and
education that are rights of the children, without any discrimination, and also provide
specific services to prevent violence, exploitation, abuse, separation and also work in
the field of care, support or reintegration.
8. Monitoring and oversight the systems of data collection or responses made under it.
Primitive percept on the use of Restorative Justice Programs in criminal matters
The concept of ‘restorative process’ is as similar as mediation in that the victim, offender and
the individual or members who are affected by the crime, are together work in the direction to
resolve the matter with the help of the facilitator. It includes mediation, conciliation,
arbitration, conferencing and sentencing circles.82
81
UNICEF Child Protection Strategy in Economic and social council E/ICEF/2008/5/Rev.1, for online text see
https://www.unicef.org/protection/CP_Strategy_English(1).pdf
Arousing, such system globally prevails and developed from traditional system to new
initiative like restorative justice system, it is an indigenous form of justice to prevent the
fundamental rights of a person’s as well as respect the dignity of person involving in it. It also
maintains equality, build up understanding and promote social harmony by curing the victim,
offenders and community. This method stress to share feeling and open up about experiences,
and aims to address their needs, in the picture this approach provides an opportunity to victim
to compensation, feel safer and also allow offender to take responsibility for the behavior and
also facilitate communities to absorbed the cause of crime and promote and prevent the
crime. This approach is not interfering the existing criminal justice system but it provides the
complemented services to use or to restore the case on the account of legal, social and
cultural basis. To recognize such a system it does not mean that, it wills detriment the rights
of the state to prosecute the asserted offenders.
Rights-based National Child Protection Systems
The rights- based national child protection system spark the light in the way of holistic,
sustainable or in a well coordinated way to protect children. For effective reorganization of
the system is based on the state’s responsibility and human rights obligations of children. 83 it
is expressed here:
• Laws and policies are there, in the best interests of the child to protect from abuse,
neglect, exploitation and violence and respond, when violations occur.
• A Central Government makes coordination and its mechanism for child protection,
bringing together Central Government departments with the different provinces of central and
local level of government and civil society.
• Effective regulation and monitoring of children are essential to provide protection at

all levels such as, in child care institutions and school.
In the functioning of the child protection system, view of children and their family’s
experiences were found, it may strengthen the care and protection of the child. Such
mechanism supports the child-friendly services in the community at all level and maintained
the standard quality provided by the government or authorized agencies.
Elements of National Child Protection Systems
A rights-based National Child Protection System is build up of the ingredient that, work
together to empower the protective surrounding around each child and his or family.
 Child protection laws include customary laws complied with the UNCRC and other
international or regional regulations, procedures prevail to forbid, protect and answer
to all forms of violence against children.
82
Basic principles on the use of restorative justice programmes in criminal matters, was adopted by United
Nations in 2002 ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). For the online text , see the
web site http://www.un.org/ruleoflawhtml
83
Training Manual on Protection of Children from Sexual Offences (POCSO) Act & Rules 2012 for NGOs/ Youth
Clubs/ Youth Groups, for the online text see the Web site, www.nipccd.nic.in
 It is coordinated structure among the government, civil society, human rights bodies,
international organizations and sectors with different levels with a proper design to
report refer the child protection issue to each agency working with children.
 The integrated data collection system established regular reports on both
predominance and the knowledge of child protection problems.
 Services and responses are the monitor of the certified care providers and imposed
minimum standards for the care institutions.
 A specific range of child–friendly services that reconsider as to support and empower
the role of family to provide care and protection to children. The agency can arbitrate
any time when family not willing or unable to fulfill their duties in a proper manner.
 Proper and appropriate resources must be provided for effective services.
 Children have many ways to express their views; all such responses are genuine to be
included in the development of policies and scheme related to the protection of
children.
 An attentive and supportive public is always ready to prevent harm and answer the
issue of child protection in their area or in the wider society.84
The History of Child Rights in India
In the Indian Constitution, there is various provision grounded with the basic structure to
protect, develop and welfare of the children. There were wide ranges of the provision of laws
which have the essence of the UN Convention; in this spirit, they guarantee their rights and
entitled the protection under the constitution. In the 50’s UN Declaration of the Rights of the
Child was adopted by the UN General Assembly, along with that such declaration was
accepted by the Indian Governments, as a part of Five Year Plans. Various laws and diverse
programs initiated by the government aiming to provide services related to children such as
health, nutrition, safety, livelihood, or education.
National Policy for Children was adopted by the Government of India, in 1974,
acknowledging the children as the supreme assets of the nation. Such policy prescribe the
suggestion for complete health program, supplementary nutrition for mother and children,
nutritional education for mothers, free and compulsory education to children up to the age of
14 years, non formal re school education system, promote physical education, contesting
activities, special recognition to children of weaker section like the scheduled castes and the
scheduled tribes, hindrance of exploitation and special amenities for the handicapped
children.
The policy furnishes a National Children's Board, under the National Policy for Children to
work as a convention to plan, review, coordinate and execute the various services directed
toward the children. The Board was first set up in 1974. This policy has been revised in 2013.
India and its history of recommitment to the UN Convention of the Rights of the Child since
India’s Ratification of the Convention in 1992:85
84
Child Protection Initiative Building rights-based national child protection systems: a concept paper to support
Save the Children’s work, see online text on
https://resourcecentre.savethechildren.se/sites/default/files/documents/3250.pdf
85
The UNCRC and India in The United Nations Convention on the Rights of the Child (UNCRC) .for online text
see,
 India acceded to UNCRC on 11 December 1992
 National Plans of Action for Children, 200586
 India adopted the National Charter for Children, 2003
 The Commission for Protection Of Child’s Rights Act, 2005
 The National Policy for Children, 2013
The National Policy for Children, 201387
Recognizes that:
• Any person below the age of eighteen years is considered as child
• Childhood is an intrinsic component of life, that has its own value
• Children are not a homogenous group and their different needs need different
responses, especially the multi-dimensional vulnerabilities experienced by children in
different circumstances
• The long term, sustainable, multi-sectored, integrated and inclusive approach is

necessary for the overall and harmonious development and protection of children
Reaffirms that:
• Every child is exclusively essential and a supreme asset of a nation
• Significant standard and supporting action are mandatory to abate or eliminate conditions that
cause inequity
• All children have the right to grow and have happy, loving surrounding or the environment
• Families are to be adequately equipped by a strong social safety system to protect, care, and
nurture their children.
In 1985, The Department of Women and Child Development were introduced by the Ministry
of Human Resource Development.88 This department besides ICDS implements several other
programs, undertakes advocacy and inter-sector monitoring catering to the needs of women
and children. In pursuance of this, the Department formulated a National Plan of Action for
Children in 1992.
The Convention on the Rights of the Child was ratified by the Government of India on12
November 1992. By ratifying this, the government is duty bound to line up the policy with
convention by review it or amend the proviso. The Convention revalidates the rights
https://fight-ipca.com/wp-content/uploads/2017/05/un-crc-and-india.pdf
86
THE COMMISIION FOR PROTECTION OF CHILD RIGHTS ACT , 2005 AND THE SUBSEQUENT CONSTITUION OF
THE NATIONAL COMMISIION FOR THE PROTECTION OF CHILD RIGHTS http://wcd.nic.in/The%20Gazette%20of
%20India.pdf
87
http://wcd.nic.in/childwelfare/npc2013dtd29042013.pdf
88
https://en.wikipedia.org/wiki/Ministry_of_Women_and_Child_Development
guaranteed to children by the Constitution of India, and is, therefore, a powerful weapon to
combat forces that deny these rights.89
The Ministry of Women and Child Development has the nodal responsibility of coordinating
the implementation of the Convention. Since subjects covered under the Articles of the
Convention fall within the purview of various departments/ ministries of the Government, the
Inter-Ministerial Committee set up in the Ministry with representatives from the concerned
sections monitor the implementation of the Convention.
At the provincial level
The State Governments have to assimilate - in letter and spirit - the articles of the Convention
on the Rights of the Child into their State Plans of Action for Children. The number of
policies was introducing to empower and refine the structure of providing protection; welfare
and development of children also protect economic, political and social rights. The
Convention has been translated into most of the regional languages for dissemination to the
masses.
Networking with experts and NGOs
The mobilization and greater involvement of NGOs in programs for the development of
children and women have increased the potential to accelerate the development process in
achieving the national goals for children, as outlined in the National Plan of Action.
Accordingly, their involvement in the dissemination of information on children's rights as
well as in the preparation of the Country Report was considered vital by the Government. 90
In India, children’s vulnerabilities and unfolding to abuses of their protection rights endure
extensive and various in natures. The expression of these violations is distinct, varying from
child labour, child pornography, child trafficking; to commercial sexual exploitation and
many more forms of violence and abuse. Though poverty is one of the marring factor,
generally liable for the cause of the issue like child labour, other factors likewise
discrimination, social elimination, although the lack of quality education or parents’ attitudes
and perceptions about child labour and the role and value of education need also to be
considered.
The essences of an extension of the range of trafficking children are from industrial and
domestic labour, they are forced to early marriages and for commercial sexual exploitation.
Current studies reflect that 40 per cent of women sex workers enters into the business of
prostitution before the age of 18 years. Moreover, for children who have been trafficked and
rescued, opportunities for rehabilitation remains scarce and reintegration process arduous?
As in there is no clear data, or any kind of specific information on the issue of child
protection is not provided or explain anywhere, but on the other hand, evidence suggest or
89
https://panihatichhatrashakti.wordpress.com/2010/08/18/the-history-of-child-rights-in-india/ AUGUST 18,
2010 · 7:05 PM last accessed on Feb.4,2019
90
https://panihatichhatrashakti.wordpress.com/2010/08/18/the-history-of-child-rights-in-india/ Updated on
A UGUST 18, 2010 · 7:05 PM Last Accessed on Feb.4,2019
impaired that children belong to the special communities who suffer social exclusion,
disadvantage due to belongings poor family. There is a lack of services in this area to provide
support along with that there is the divergence in the prevailing laws, rehabilitation policies
must be an extensive reason of concern.
2.2 A comparative study of Sexual Offences against Children

The criminal law already provides for a wide range of sexual offences and for severe
penalties on conviction for those offences. A number of important developments have taken
place in this area of law in recent years which represent significant progress towards updating
the law to reflect modern conditions across all the jurisdiction of the world. A comparative
study of the sexual laws is done with the western culture countries, is to point out the
condition prevail there about the heinous crime like sexual abuse. In that context, we here
concluded three countries that are
United States of America
England
European Countries
Sexual offences in the United States of America
The post- 1981 reforms in the UK in the law have been significant and have represented a
positive response to changes in the values and attitudes within our society. Generally, the
reforms showed a reflection of change and development. In spite of that law is the result of
the process in which reports and papers of the law reform commission were consulted.
California Recent legislative changes to California’s criminal code have greatly expanded the
conduct that is captured by the crime of rape, in addition, to increasing the severity of the
penalties involved.91In 2010 there is a significant increase in mandatory minimum sentences
associated with the rape and sexual battery offences.92 In 2002 and 2013, legalization
broadened the definition of conduct captured by rape and sexual battery provisions to better
reflect the changing community standards on how certain conduct should be
treated.93California has 2 core general offences in rape and sexual battery.94
In this laws, rape is explained as where one is who is engages in the sexual intercourse with
another person without the consent or against the will of that person. While Sexual battery is
when the offender touches the intimate area of another person, just for gratification or for
sexual pleasure after restrain. Florida law has followed a similar path recently, however,
focused more on increasing the severity of punishment99 for offences, such as restraining
capital offences for serious child abuse (this is, however, unconstitutional so would be read
down to the life of no parole), increasing the mandatory minimum punishment for repeat sex
91
2010 Cal. Legis. Serv.Ch.219(A.B.1844)(WEST)- Increased severity of Punsihment.2013 Cal. Legis.
Serv.Ch.259(A.B.65)(WEST)- Expanded definition 2002 Cal. Legis. Serv.Ch.302(S.B. 1421)(WEST)- Expands
definition of rape and sexual battery
92
9 2010Cal. Legis.Serv.Ch.219 (A.B. 1844)(WEST) – Increased severity of Punishment.
93
2013 Cal. Legis. Serv.Ch.259 (A.B.65)(WEST)- Expanded definition 2002 Cal. Legis. Serv.Ch.302(S.B. 1421)
(WEST)- Expands definition of rape and sexual battery
94
Cal. Penal Code, 243.4,261.
offenders. Florida has one core general sexual crimes of sexual battery. 95 This then includes
many different sub offences with different penalties and the punishments. The basic structure
is just the culprit engages in sexual activity with someone else, or without the person’s
consent or against their will.
Sexual offences against Children:
The age of consent in California and Florida is years of age. A “minor” is any person who has
not attained the age of 18, while a “child” is any person that has not attained the age of 14. 96
Both states have harsh laws for the persons who commit a sexual crime against the minors or
children.
California Rape committed upon a minor or child has stronger mandatory minimum
sentences than if the crime were committed upon an adult.97 An adult that has sexual
intercourse with a child 10 years of age or under, whether under duress or otherwise will be
punished with a minimum 25 -year prison sentence. 98 Florida the crime of sexual battery
covers most forms of sexual assault against minor and children through its subsections. The
other crime that covers a wide range of sexual abuse behavior towards children is that of lewd
or lascivious battery and lewd or lascivious molestation. These cover the touching the child
genitals by an adult and also engage in sexual activity with the minor aged between the 12 to
16 years of age.
Mandatory Sentencing
There has been some form of Mandatory minimum sentences in the United States, since the
establishment of British colonies that eventually come together to make the United States of
America.99 Mandatory minimum sentencing only began to become widespread in the late
1980s.100 Before the mid- 1980s the laws prevailing in the US was not structured as today
laws and the only a certain minimum level of sentences were prevail that are fairly
uncommon. Judges had wide discretion to formulate and impose whatever sentence she/he
thought was appropriate.101 The 1970s and 1980s, saw the rise of the ‘war on drugs’ in the
United States and with it, a stricter approach to dealing with crime. 102 One of the mechanisms
used to enforce this “tough on crime” approach was the abolition of indeterminate sentencing
and implementation of the mandatory minimum sentence 103. This charge away from
indeterminate sentencing was lead countrywide by California, followed close behind by
Florida. By 1994, all 50 US States had mandatory minimum sentences on their legislation
books.104 The main basic ground and reason of the minimum sentencing are that it thought
95
2 Fla.Stat.Ann.794.011
96
Cal. Penal Code, 261, Fla.Stat.Ann,794.011.
97
Cal. Penal Code, 264
98
Cal. Penal Code, 288.7
99
Gray Lowenthal, Mandatory sentencing Laws: Understanding the Effectiveness of Determinate Sentencing
Reform’ (1993) California law reviews 81(1) 61,63
100
Herbert Hoelter , ‘Sentencing Alternatives- Back to the Future’(2009) Federal Sentencing Reporter 22(1)
53,53.
101
Ibid at 53
102
Ibid at 53
103
Joan Petersilia ,’California ‘s Correctional Paradox Of Excess and Deprivation”(2008)Crime and Justice 37(1)
207,210.
104
Ibid at 53
that is strong enough to deterrent the criminal from committing crimes and also ensure that if
the person commits such crime they are liable to go to prison for a certain time period. There
is a large amount of pushback on mandatory sentencing in the academic world. There are
countless reports that show the merits and the demerits of this scheme as in the sense of
benefits and the loss of the society and on the economy and the overall effect on the country.
It was tough to make the change or alter the system prevail in the society, although the rise is
up to in California. The state wants to cut down the standard for the mandatory minimum as
to avoid the burden for unnecessary report against the non-violent offender. On 8 November
2016 the state is come up in reducing the effect of these prevail system to construct the
balance in the society. This initiation has full proof back up plan and it is required for the
people of the state and passed by the Governor, Jerry Brown. It will be considered as the
biggest reform in the United States ever, although if they hold on this it will result out as
substantial removing of the system for repeat offender also. This is all done as a result of the
system there is always a risk and danger from these violent offenders to opt the alternative
sentencing measure.
Sexual offences in England
In the past years that there has been a relatable debate are always on high to what is the legal
guidelines and policy are more specific to applies on what extent to such brutal offences in
each and every case. In this journey, the landmark result is out as in the form of the Sexual
offence act, 2003. The Act outlined arrange of offences including rape, assault by
penetration, sexual assault, sexual abuse, an engaging person in sexual activity.
Definitions are as follow:105
Rape:
(A) Intentionally penetrates the vagina, anus or mouth of another
(B) does not consent to the penetration
(A) does not reasonably believe that (B) consents
Assault by penetration
(A) Intentionally penetrates the vagina or anus of another person
(B) With a part of their body or anything else
The penetration is sexual
(B) Does not consent to the penetration
(A) Does not reasonably believe that (B) consents
Sexual assault:
(A) Intentionally touches another person (B) The touching is sexual

105
The Crow Prosecution Service, Rape and Sexual Offences: Chapter 2: Sexual Offences Act 2003- Principle
offences, and sexual Offences Act 1956- Most Commonly Charged Offences, available at <
http;//www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/>.
(B) Does not Consent to the touching (A) does not reasonably believe that (B) consents
Causing sexual activity without consent
(A) Intentionally Causes (B) to engage in activity
The activity is sexual (B) does not consent to engage in the activity
(A) Does not reasonably believe that (B) consents
This Act was followed by the definitive guidelines issued by the Sentencing Council in 2007
known as the Sexual Offences Definitive Guidelines. 106 Under the guidelines, courts must
first examine suggested starting points and sentencing ranges. They must then examine any
aggravating and mitigating factors that are present. Here, the guidelines for sentencing for
serious sexual offences are based on the guideline judgment on rape (Milberry and others),
where the court of appeal stated that there were three dimensions to consider: harm to the
victim, culpability of the offender, and risk posed by the offender to society. There is a
expanded range of sexual offences, including non-consensual offences (including rape,
assault by penetration, sexual assault), offences involving ostensible consent (including
sexual activity with a child, abuse of trust, arranging or facilitating the commission of a child
sexual offence), and preparatory offences (including sexual grooming, trespass with intent).
There are wider ranges of sentencing to prevent the re-offenders. Non-custodial sentences
include community orders (example carrying out unpaid work, attending treatment or
rehabilitation program and adhering to curfews or supervision requirement etc.), and ancillary
orders. Courts can also give disqualification order (preventing sexual offender from working
with children),deprivation orders( including depriving offender of equipment used to commit
an offence such as computers) and sexual offender prevention order (which prevent the
offender from doing anything describe for a period of not less than 5 years or until further
notice).107 The current operation of sex offenders as manage by the National Offender
Management Service in England and Wales, and it is achieved through containment,
supervision session monitoring and possible restriction of movement, restriction on residents,
surveillance and control of movement through curfews and electronic monitoring.108
Nature of Offences with Mandatory Minimum Sentences in England
In England, the only specific offence which carries a mandatory sentences of life
imprisonment as murder.109 Although this sentence is given, it is rare for the offender to
spend the rest their natural life in prison because courts only need to fix a minimum term to
be served before consideration of parole.110 ‘Mandatory minimum sentences’ can also be
given in other circumstances, including a life sentences after the second conviction for a
106
Karean Harrison, ‘The High – Risk Sex Offender Strategy in England and Wales: Is Chemical Castration an
Option?’ (2007) 46 The Howard Journal 16.
107
Carol Nicholls Et Al, Center for Gender and Violence Research , University of Bristol, Attitudes o Sentencing
Sexual Offences (2012) 2 ; Sentencing Council for England and Wales, Sexual Offences Definitive Guideline
(2007)
108
Carol Nicholls Et Al, Center for Gender and Violence Research , University of Bristol, Attitudes o Sentencing
Sexual Offences (2012) 5
109
Criminal Justice At 2003(UK) s 277; If under 18, than detained during Her Majesty’s Pleasure , and if under
21, then sentenced to custody for life( powers of criminal courts(sentencing) Act 2000 UK) s 90, 93
110
The Crown Prosecution Service, Sentencing –Mandatory Life Sentences in Murder Cases
http://www.cps.gov.uk/legal /s_to_u/sentencing_-_mandatory_life_sentences_in_murder_ cases/.
‘very serious violent or sexual offence,’111 a 7- year sentence after a third conviction for
dealing Class A drugs,112 a 3-year sentence after the third conviction on domestic burglary, 113
and a 3-year sentence for certain prohibited weapon offences. However, the word
‘mandatory’ is misleading here because courts can still avoid passing the sentences if there
are particular circumstances relating to the offences or to the offender which ‘would make it
unjust to do so in all circumstances.’
Sexual offences in European Countries
Framework Decision 2004/ 68/ JHA
The legal documents introduced so far were established by the Council of Europe and United
Nations organizations. The European Union also does a lot to protect its children by
introducing new laws and stricter penalties. Until 2011 the main legal document protecting
children from sexual abuse and exploitation within the European Union was the Framework.
Decision 2004/68/ JHA on resisting the sexual exploitation of the children and child
pornography114 that explain the crime of child pornography as any obscene material that
visually interprets or represents:
1. “Any corporal or real child who indulges in or engage in any type of sexual activity,
specific conduct related to sexual acts that contain an indecent exhibition of the
private body part that contains genitals or the pubic area of a child;
2. An original person seems to be a child tangled or engaged in the standard mentioned
in (1);
3. Realistic image of a non – existent child involved or engaged in the conduct
mentioned in (1)”
Coercion or recruiting children for prostitution or engaging into sexual activities with
other minors are offences which the Framework Decision requires the member states to
criminalize. The penalty should involve imprisonment for at least one to three years.115
Additionally, in the case of aggravating circumstances, the length of imprisonment can be

increased to five to ten.116 Aggravating circumstance is coercing a child into prostitution
pornographic performances; profiting from exploiting a child; serious violence and harm
caused to the child; deliberated and reckless endanger of the life of the victim; offence
committed within a criminal organization. This framework also covers production
acquisition, possession, distribution, dissemination or transmission of child pornography; the
supplying or availability. However, under the Framework Decision, there are some exception
which includes when the person visualizes in the material has the reach the age of 18 and
111
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) s 122; Criminal Justice Act 2003 (UK) s
224A.
112
Power of Criminal Courts (Sentencing ) Act 2000 (UK) s 110
113
Ibid
114
Framework Decision 2004/68/JHA on combating the sexual exploitation of children and child pornography ;
can be found at : http:// eur-lex.europa.eu/LexUriServ/ LexUriServ. do?uri=OJ:L:2004:013:0044:0048:EN:PDF.
115
ibid
116
ibid
when the images of children who have reached the age of consent have previously agreed for
production and possession of materials.117
Unfortunately, the Framework Decision did not prove as successful in the fight against child
sexual abuse and pornography due to the requirement of proof of “explicit sexual conduct”
but not abuse as well as the fact that the Framework Decision did not have direct effect. This
means that its provision, if not entirely incorporate in the national legislation, cannot be
directly invoked before the national court. The fact that the framework decision did not have
the direct effect on the member states legislation as well as any sanction would be imposed
on the failure of the member’s states to comply with its provision, made the framework
decision as a legal tool quit unreliable. Additionally, the difference in the definition of child,
child pornography, or age of sexual consent; the lack of established law against possession of
distribution of child pornography in some member states, or the lack of correspondence in the
national penal courts additionally hampered the protection of children under the Framework
Decision. However, with the entry into the force of the Treaty of Lisbon, some changes were
introduced in the sphere of criminal matters within the European Union as under article 88.
Framework Decision has been replaced by directive under article 82 and 83 of the Treaty of
the Functioning of the European Union.
Article 82(1) state that judicial cooperation in the criminal matter within the European Union
should be based on the principle of mutual recognition of judgment and judicial decision.
Hence, the approximation of law and regulation is required. The second paragraph further
elaborates that to facilitate the corporation in the criminal matter, the European Parliament
and the Council may establish minimum rules by means of a directive. It means that the
definition of offences and levels of criminal sanctions will be found under one document.
Additionally, directives should harmonize definitions of criminal offences and respectively
their sanctions.118
Under article 288 TFEU, the adopted directives are binding and directly applicable in all
members’ state. Which means that, unless not clear and unconditional, their provision will be
in force in national laws, even if it has not been implemented on time or in a correct way by
member states. In a procedural aspect, in contrast with the unanimous voting for the adoption
of Framework Decision, the directives will be adopted by co-decision in majority voting of
the European Parliament and the Council.119 However, in case of members state recognize a
threat to its criminal justice system seen in the text of draft directive, it can pull an emergency
brake and propose the draft to the Council for additional discussion.
Child Pornography
The Directive gives a straight definition of child pornography which has been improved in
accordance with the OPCRC and Council of Europe Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse.120 According to article 2(c) of the
Directive child pornography is “ any material that visually depicts a child engage in real or
117
Framework Decision 2004/68/JHA on combating the sexual exploitation of children and child
pornography,art. 3,par.2
118
Treaty of the Functioning of the European Union, article 83(2)
119
Miettien, S., Criminal Law and the policy of the European Union, Routledge 2013
simulated sexually explicit conduct; any depiction of the sexual organs of a child for primary
sexual purposes; any material that visually depict any person appearing to be a child engaged
in real or simulated sexually explicit conduct or any depiction of the sexual organs of any
person appearing to be a child, for primarily sexual purposes; or realistic images of a child
engage in sexually explicit conduct or realistic image of the sexual organs of a child, for
primarily sexual purposes.”
Blocking websites
When it comes to child pornographic materials and the easy online copying and speedy
dissemination, the Directive provides for measure against websites which contain or circulate
such content. These are included in article 25 and advised member’s state to remove web
pages with child abusive images hosted within their territories as well as outside their
borders. In her paper “To Block or not to Block- European Child Porno Law in Question,”
Kierkegaard comments on the provision that it does not supersede prosecution of offenders or
the removing of the content. This article, more or less, provides the transparent and
adequately safeguarded procedure. This means that the restrictions are blocking of the
website should be proportionate and limited to what is necessary and the users should be
informed about the restrictions.121
Sexual Abuse
Child pornography sometimes constitutes a depiction of sexual abuse of children and using
that for financial gain falls under the crime of exploitation of children. That is why child
pornography, as codified in the Directive, has been criminalizing by the more substantive
criminal penalty and supported by article 3 with the maximum penalties with regard to child
sexual abuse offence.
Sexual Exploitation
Article 4 of the Directive criminalizes the international conduct of the offence of sexual
exploitation of children of the respective penalties for the offenders. At first glance the
provision in the Directive is broad and exhausted but in places, the language is soft and not
obligatory. However, it focuses not only on the visual representation but also requires the law
enforcement authorities to analyze child audiovisual recordings transmitted or manipulated
by information and communications technologies. It covers the “explicit” conduct as well as
fictitious and pseudo- images may be considered. Even though the Directive should be a
revised version of the anti-child pornography legal documents discuss so far including the
weak points and loopholes the academics and critiques discuss, it still focuses only on the
objective aspect of the crime.
The Council of Europe Conventions design to combat sexual violence against children are
extremely diverse and cover a very wide field, ranging from prevention to assistance to
victim and punishments. There subject matter, which covers a broad range of criminal acts,
underscores there complementary nature. The convention on the protection of children
against sexual exploitation, for example, cover all the various types of conduct encountered
in this area endeavors to define the forms of sexual abuse that have developed more recently
in the first internationally accepted definition of “ solicitation of children for sexual
purposes” or “grooming”. The Council of Europe trafficking Convention deals with acts that
occur at an earlier stage but which led to the exploitation of individuals, in particular, sexual
exploitation, while the cybercrime convention addresses the problem of the frequent use of
new communication technologies to commit child sexual abuse and seeks to provide the
appropriate responses. These are complimentary conventions, therefore, which the European
Union is building on by creating in instruments, which in turn drive to progress within the
Council of Europe and should in future contribute to a dynamic process of revision.
2.3 Origin of the Act
There is an urgent need to protect children and it became an issue for all societies across the
world. Children become subject to abuse and exploitation in different ways as they have gone
through in different ways either it is sexual including commercial sexual exploitation,
physical and psychological violation.
There are many reasons why children’s are in this type of condition that is being orphaned,
displaced, disabled, and homeless or abandoned. These situations were arises during the time
of emergency, war, natural calamity, a disaster when they separated from their parents and no
one is there to protect them from such harm.
Child exploitation and abuse adversely traumatized the children and it will leave an
impression on the well being of the children and it degenerates their development. Children
who go through the abuse process have long term consequences of that like a mental health
issue, physical issue, low in skills, drug and alcohol and chances to come in the contact of
law.
Sexual abuses on children are blemish act of society at large level as it shudders the human
sensibility of the society and obstructs the normal healthy development of children. It will
have great physical, mental and psychological effects on the children as to their body, mind
and it also shattered the growth of the child122. Child sexual abuse is the most brutal crime as
it leaves their marks that are everlasting on a children mindset. It is an encroachment of the
childhood; not only by the physical attack but it bluntly the capacity of trust and to feel and
live a normal life. Origin of POCSO Act is a boon for the victim and the families of the
victim. It is very prescribed legislation which specifies each and every possibility of the
crimes, consider various forms of penetration and the acts of immodesty against the children.
Scenario in India
India is a vast country having wide social, cultural and sexual variations. In Indian society,
sexuality has evolved over time and been immensely influenced by the rulers of their time
and the religion thereof. Indian sexuality is manifested or exhibited in their attire, behavior,
recreation, literature, sculpture, scriptures, sports and religion. It has persuaded in the way we
acknowledge our well being, disorder and constructs treatment for the same. In modern time,
with rapid globalization, the unique Indian sexuality is getting diffused. At this point of time,
it is necessary to discover our self in terms of sexuality to attain individual freedom and to
reinvest energy to the social causes related to sexuality.123
India performed a prominent part in the history of sex, from excavating the first literature that
treated sexual intercourse as a science, to the modern Indian context that focuses on the
philosophy of the new age groups, in relation to sex. It is a topic of discussion that India
established sexual education by the way of Art and Literature. However, in all the societies,
there was a difference in sexual practice even though in people of the same state as rules are
different for the ruler and for the common people. Powerful people have a decadent lifestyle,
which has no morals or not characterized the life of the common people. India is a very vast
country in terms of system, tradition, custom with that variation in demographic condition as
well as in the socio-economic condition. India has diversity in religion or morality, in spite of
that, it was communally described as “a jumble of possibilities” that means there is wide
opportunity to grow cause they have variety in belief, customs, the culture that basically
shaped their lifestyles and sexuality.
Pornography/Obscenity
The legal definitions and interpretation of the term pornography and obscenity alter broadly
on the globe. Some countries may allow some kind of pornographic material or sensual
material; on the other hand, some countries completely outlawed it. Along with that, some
countries allow the selling of moderate obscene material in general store even the precise
sexual material is regulated by the authorities. The production and sale, and to a slightly
lesser degree, the possession, of child pornography, is illegal in almost all countries and some
countries have restrictions on pornography depicting violence.124
Any types of sexual publication are illegal in India. Even though pornographic books,
magazines, videos, and such material and their display and sales inadvertently be seen in
urban areas or in major cities. There is central board appointed by the government to check
out the sensuality in the films, prior to release, they have the power to make the cut, ban or
alter any type of obscenity in the films.
Age of Consent
The term “age of consent” is not specifically defined in any legal statutes but this phrase is
used to define the minimum criteria of the age, in regard to permit another to indulge in the
certain type of sexual acts. Generally, it is like the age, which considered legal age to
competent enough to the sexual activities.125 The concept of the consent of age is not to be
merged with the other areas were the age factor matters like the areas are the age of majority,
the age of criminal responsibility, the marriageable age, the voting age, the drinking age,
driving age, or criteria of age is needed for any other purposes. Basically, this concept has its
existence due to the limitation caste on the age, explain that person below the mentioned age
regarded as a victim and their partner is an offender in the eye of law. Laws relating to age of
consent may vary in some of the statutes and there are specific range deals with it like age up
to 14 to 18 in general, while there is minimum is 12 years and maximum is 21 years of age as
regards to the type of sexual act, the gender, and relation of the parties.126
Sex Work and Prostitution
Sex working and prostitution is one of the same kinds. People who were indulging in sale of
sexual services or selling of body for the sexual need in lieu of money are considered as sex a
worker. Prostitution is legal terminology for sex working. Although it defined in law in
different ways in spite of this it was illegal in many countries. Along with that in many
countries to buy sexual services is also punishable. The legal definition of the prostitution is
varied globally, in many countries the law applies only to women; on the other hand, it is not
gendered specific127.
In the Indian scenario, the concept of prostitution, that is indiscriminate sexual relation
especially for money or any other favors, is an old age custom. Purchase young girls, and
donate them for the temples were they be named as Devdasi, it was a settled system in India
by 300 C.E. these girls are there to fulfill the demand of the temple priest or the pilgrims. 128
Mostly, prostitutes come from the poor family, less educated, abounded from society, or
forced by the gang. Generally, they take this profession on the seducement of the false
promise of the jobs.
Sex Trafficking and Sexual Exploitation
Human trafficking is defined in international law as involving force, power, deceit, except
where the recruitment leads to 'sexual exploitation’, in which case the consent of the
trafficked person is not relevant. Sexual exploitation is not defined in law but it is mentioned
and understood to mean any situation where a third party facilitates or profits from
commercial sex.129 Hence, anti-trafficking laws can start raids on immigrant’s sex workers
and their co-worker can be considered as traffickers.130
The confusion between migrant sex work and trafficking has derived to an end while the
difference lies in the criminalization of sex workers and prevents institutionalization of
rights-based approaches to sex work. These policies and statues are questioned by the activist
or by the World Health Organization (WHO) and the Global Commission on HIV and the
Law that discard the beliefs or the philosophy that no woman willingly choose to work as sex
worker, but there should be some kind of feasible force or on evidence of intimidation were
exists.131
Journey through Legislation
Historically, child sexual abuse is a hidden problem in India and mainly not come in the
limelight of the mainstream as in the society or in the criminal justice system. Till the
enactment of the POCSO Act, CSA not an offence, rape is the only criminal offence and also
there are no any other specific laws for the children to protect from any kind of sexual
offences. In that condition, offensive sexual behaviors like sexual assault, harassment,
exploitation, pornography, and sexual favors were never been consider to be offensive. In
recent years recommendable steps were taken by the central government with the help of
Ministry of Women and Child Development they immensely indulged to “break the chain of
the conspiracy of silence”132 and have started useful political and popular momentum in that
direction. These movements in the light of the constitutional provision initiated by the
Ministry of Women and Child Development, and bring out the new legislation that is named
as Protection of Children from Sexual Offences (POCSO) 2012.
The Act is based on the constitutional provision and with this spirit their provision was laid
down on. The constitution is considered a foundation structure of the legislation. There is the
certain article which empowers the child and women to raise a hand against society. The
Constitution provides a safeguard and prevents there to abuse the process of laws and also
strengthen society by giving different legislation to provide the safeguard and shelter to
children. Some are mention below133:
• Article 14 provides the right of equity before the law and equal protection of laws in Indian
Territory
• Article 15(3) provides that, the state is empowered to make any laws for any special
provision in regard to women and children
• Article 21 provides the rights to life that has to be free, dignified, as per the procedure
established by the laws
• Article 21A direction to the state to provide elementary education to children up to the age
of 6, free of cost
• Article 23 deals with the prohibition trafficking human or forced labour
• Article 24 prohibits the employment of children below the age of fourteen years in
hazardous occupation.
• Article 25-28 deals with and provides freedom of conscience, free profession, practice and
propagation of religion.
• Article 39(e) and (f) provide that to secure the health of the worker, children, men, women,
and have a healthy life and livelihood, dignity and protection from exploitation
• Article 45 provide and protect early childhood care and education for all children till the
age of 6
Cases related to constitutional provision to safeguard the children
1. Lakshmi Kant Pandey v. Union of India:
This case is exceptionally important in terms of the adoption rules, for the Indian children’s,
by the person outside India or inside. There were no specific laws prevail in this matter, so
Supreme Court outlined new guidelines in this matter to regulate the intercountry adoption
because they can cause immense harm to Indian children. There may be a possibility of a
trade, trafficking, slave, labour or any other purpose be like. In this way, to legalize the
adoption process such regulations are needed. Accordingly, Justice Bhagwati constructs the
scheme to channelize the adoption process in the country or outside the country. Supreme
Courts mention that if the adoption not to be done accordingly to the scheme than it will be
consider as invalid and person related to this are liable for strict action. Indian Government
formed the national policy in this regard named as CARA. Also Indian Council for Social
Welfare v. State of A.P. [(1999) 6 SCC 365].135
2. M.C.Mehta v. State of T.N.:
In this case, Supreme Courts direct that children will not be employed in the hazardous work
were the risk of life is prompt, such as a manufacturing factory of matchbox and fireworks.
In this light a positive step to taken to protect children and for the welfare of children and to
improve the life and the quality of the children136.
3. Gaurav Jain v Union of India:
In this specific case, Supreme Courts laid down the ruling for the betterment of the children
of the prostitutes as they have rights to equality, opportunity, dignity, care, protection
and,rehabilitation. They can become a part of mainstream social life without having a stigma.
The Court directs to constitute a committee, to develop a policy for the rehabilitation of such
children and child prostitutes and implementation and submission of the periodic report of its
Registry.137
4. Sakshi v Union of India:

In this Public Interest Litigation matter, the Supreme Court of India asked the Law
Commission to consider certain important issues regarding sexual abuse of children
submitted by the petitioner and the usefulness of amendment to 375 and 376 IPC.138
2.4 Child Sexual Abuse in India
Having all these, there is something left over it that is child sexual abuse in India. There was
a large scale research study was done about the growing concerns of female infanticide, child
rapes and institutional abuse of children led to the commissioning of offences, sponsored by
the government to assess the extent and the nature of child abuse in India.139 Such study is
settled by the profound designed methodology that covered 13 states in those two states from
each of the 6 geographic zones in the country, containing the states that have highest or the
lowest crime rates in relation to the offences against the children. The sample was purposive
and included 12,447 children, 2324 young adults and 2449 stakeholders representing five
different evidence groups: children in the family, at the workplace, in schools, on the streets
and in institutions. The study shows the comprehensive impact of the abuses such as
emotional, physical, and sexual abuse prevailing all over the surveyed states. As per the study
it can be concluded that every second child is emotionally abused, 69 % (n = 12,447) reported
physical abuse, and 53 % (n = 12,447) reported some kind of sexual abuse in any form.
Generally, half of the sexual abuses were committed by the person known to the child who
has trust over it or the responsibility of the child. 140 The survey of the current state of
knowledge on CSA in India concluded that empirical studies report a much higher incidence
of CSA than previously acknowledged by authorities or by families. It can summarize the
findings of several studies and reports that 18–20 % of CSA occurs in the family and around
50 % in institutional settings. In addition to that, there were many variations in regard to the
crime rate and their extent as on the basis of the regional and rural-urban area in relation to
CSA in the country. Girls are more vulnerable to sexual abuse, although boys too reported a
high percentage of victimization and are subject to greater social stigma. 141 Finally, it
suggest142 that although sexual exploitation and abuse is strongly correlated to poverty, it
occurs in families across the socioeconomic and religious spectrum. However, factors that
facilitate CSA, such as poverty, overcrowding, extended family living arrangements, an
abundance of street children, and lack of recreational facilities in families 143 are by no means
exclusive to India. Undoubtedly, the impact must be excessive or severe as per the size and
density of the population of India in lieu of the studied sample. Thus, a complex mix of
individual, ecological and situational factors that are said to facilitate CSA144 might account
for its prevalence in the Indian context. However, the absence of empirical research precludes
definitive conclusions.
Sexually abused children are severely let down by the systemic failure of the criminal justice
system to redress their grievances and by social ostracism associated with such abuse 145 only
3 % of CSA offences uncovered by146 the study were reported to the police 147. It is
unsurprising that CSA is severely underreported given the shame and associated socio-
cultural stigma, especially if the abuse is in the context of the family 148. This is the reality of
Indian culture or to say that other Asian countries though have such common or collectives
culture, in that the individual’s experience is ignored for the sake of the family or to protect
such family for the same related with the term sexual abuse149.
Law before POCSO Act, 2012

Before the enactment of the POCSO Act, an offence of child sexual abuse is to be dealt with
under the Indian Penal Code. Child Sexual abuses were litigated under the Indian Penal Code
under the following sections150
 I.P.C (1860) – Sec 375 Rape
 I.P.C (1860) – Sec 354 Outraging the modesty of women
 I.P.C (1860) – Sec 377 Unnatural Offences
The Indian Penal Code was not sufficient to provide proper protection the child from sexual
buses or any type of non-conventional abuses, which are distinct from above mention abuses
such as pornography, trafficking, trading of children. In this regime, there were various
drawbacks in the present penal code, which not adequately equipped to solve the issue of the
child sexual abuse. Such loopholes are here mentioned:
 IPC 375 provides protection to the female victim not to protect male victims also the
basic standard of the sexual act is considered a crime “traditional” peno-vaginal
intercourse.
 IPC 354 the statutory definition of “modesty” does not justify its purpose as it not up
to the mark in relation to sexual abuses. It takes very low penalty along with that is
compoundable offence, moreover it, it does not provide protection to the male child in
this specific area.
 In IPC 377, “unnatural offences” were not specifically defined. This term is
associated only with the penetrated sex attacks, it does not specifically protect the
children from sexual attacks.
Until 2012, the only sexual offences against children recognized by the law were covered by
three sections of the Indian Penal Code (IPC) not specific to children. The only crimes
registered were.151
 Rape (sexual intercourse without consent—section 376),
 Outraging modesty of a woman (unspecified acts—section 354) and
 Unnatural acts defined as “carnal intercourse against the order of nature with any
man, woman or animal” (anal sex, homosexuality or bestiality—section 377).
In this connection, other forms of sexual abuse like non-penetrative sexual assault,
harassment and exploitation were not distinctly defining or consider as crime, that why it is
not recorded. The Protection of Children from Sexual Offences (POCSO) 2012, an act is the
outcome of the awareness of media and the public demonstration on such heinous issue,
which compelled the Indian government to pass a special law for the protection of the
children of the society. The special act concludes every possible form of sexual abuse into it,
such as sexual assault, sexual harassment, and pornography related to a child below the age
of 18 years along with that directed to settle special court accelerates the procedure of the
offences.
The Protection of Children from Sexual Offenses Act, 2012
Reasons for Enactment of POCSO Act, 2012
The shortcoming of the Indian Penal Code along with that lacking in particular law which
specifically or completely assigned to handle the issue of sexual abuse as in the form of
sexual exploitation and sexual harassment. It the wholesome reason to the enactment of the
new law by the government protect the children from sexual offences like pornography,
assault, harassment by establishing the legal mechanism in a way to maintain special courts
for the matter related to sexual abuse, or incidental to them. 152 It was the effect of the
provision of Article 15 of the Constitution of India that directs the states to make any laws to
protect the children of the nation along with the essence and standards set by the United
Nations Conventions on the Rights of the Child, to secure the best interest of the children.
Commencement of POCSO ACT, 2012
The journey of the POCSO act is like on the19th June 2012, the act received the President’s
assent and on the 20th June 2012, it was notified in the Gazette of India in the named called
as The Protection of Children from Sexual Offences Act, 2012.
The preamble of the act signifies or insists that there is immediate need of such legislation,
which constantly protects and developed the right of children, with the help of every possible
means during each stage of the judicial proceeding to maintain the privacy and the
confidentiality related to the children153.
The POCSO Act in an indispensable manner, give utmost importance to the child protection
as well as the integrated development of the child in a physical, emotional, intellectual and
social manner.
The aforementioned act also directed to the state to compile all the essential proviso of the
Convention on the Rights of the Child, that are necessary or suitable to consider in the system
like national, bilateral and multilateral condition to forbid the following:
 The influence or intimidation to a child to indulge in any illegal sexual activity;
 The illegal or ruthless use of children in prostitution or other outlawed sexual

practices;
 The deceitful or unethical use of children in pornographic or obscene performances

and materials;
Exclusive features of POCSO
POCSO 2012 generally does not use the term ‘rape’ and also does not restricted to
penetrative sex to penile penetration. Instead of all these, it broadens the criteria of offence
termed ‘penetrative sexual assault’ (section 3) to include oral sex, as well as, insertion of any
object into anus, mouth, vagina, or inclusion to penile penetrative sex.
In this case of State vs Pankaj Choudhary 2011, (pre-POCSO) the accused could only be
prosecuted for ‘outraging the modesty of a woman’ for digital penetration of the anus and
vagina of a 5-year-old child. The prosecution was unsuccessful in proving rape as the High
Court ruled that digital penetration was not recognized as an offence under the India Penal
Code154. In this light the definition of penetrative assault has extended to provide larger
protection to children.
In POCSO there is a range of behaviors prescribe and mention in the act as to what is come
into, in which category also, as being sexual assaults, short of penetration (section 7). Along
with that the offences like in “aggravated” forms of penetration or non-penetration sexual
assault consider more serious offences and also have vigorous punishments as per section
5and 9 of the act, while it was committed by the specific gang, perpetrators, in an ample plan
to commit by the person who is in power or authority in relation to children, in share
household. Hence in this connection cause grievous bodily harm, threatening with firearm or
corrosive substances, during communal or sectarian violence, assaulting a child
below12 years of age, or child who is physically or mentally challenged, infect the child with
the transmitted disease like HIV, make pregnant or assaulting the pregnant child or lead to
public humiliation. The definition of such offence is very wide enough to cover every
possible activity are like to be in it to protect the interest of the child in the present condition.
POCSO, is next generation act in many area though it explain the definition of sexual
harassment in a manner that emerge the words “repeatedly or constantly” following,
watching or contacting a child by direct method or through any other method like electronic
medium such as [section 11(iv)]—thus, covering incidents of child harassment via sexting or
sexual cyberbullying. Nonetheless, the analysis of the terms ‘repeatedly’, ‘constantly’,
‘following’ or ‘contacting’ a child with sexual intention it is not defined in the act, it was just
an question of fact to be interpreted by the courts in each and every cases, therefore, it is
likely to be debatable.
The Act has an extraordinary feature in it that it penalizes “the abetment of or attempt” to
commit any of the offences mention in the previous sections (section 16). Another
‘exceptional clause’ (section 29) are considered as in the name of “the presumption of guilt”
of the accused, till he proves innocent. Such issue of statutes leads problem into the light on
the points mention here.155
The outline for the Special Courts define under section 35, in that trial proceedings may be
done or conducted ‘in camera trials’ (i.e. privately), via video-link, or behind curtains or
screens, is intended not only to reduce trauma but also protect the identity of the child to
testimony the victim, because the matter is so sensitive in nature. The Special Court has a
vital role in dealing the cases of sexual abuses in the law or in their execution or
interpretation.
In execution of POCSO, it evolved the criminal justice system along with that there are multi-
sector approach is applied to maximize the use of their resources at par. Numerous issue
arose due to lack of training and also the inadequacy of funds or resources that affect the
process of investigation, prosecution, medical examination or any other emergency required
in the cases of child sexual abuse. The efficacy of the act or the laws totally depends on the
person who is accountable for the implementation, execution or application.
The validness of law merely depends on the people responsible for its implementation and
application. State governments will have to ensure that all the requirements specified under
the law are in place and all key stakeholders will have to internalize the core precepts of child
rights in establishing the law to work.
The detail provision was explained in the further chapter which specially focuses on the
distinguishing feature of the POCSO Act what are the provision, explanation and execution
of the laws.
From 2012 to till now the journey of POSCO Act has varied in different ways as after
enactment of the act there is no such awareness about the act, but with increasing time blown
was done in the society and with the emergence of the brutal incident the act comes in the
light and amendment and necessary provision were added to the Act, to improvise the act for
the betterment of the society.
Apna Ghar Case, 2012 make benchmark legislation that the state has to make laws as to deal
with the cases of POCSO. Asharam Bapu Case in 2012 also strengthens the proviso and
POCSO become a deciding factor to be punishing the person who is so powerful. Nirbhaya
Case in 2012 it is heartbreaking incident and so brutal that country come to the road and
wanted the laws to strict and punish the offender as soon as possible and it will emphasize to
reconsider the concept of the juvenile. Kathua rape case, 2018 and Unnao rape case, 2018 it
will shake the nation and the demand is fulfill by the government in the form of amendment
meant in the laws.
Amendment of POCSO Act
Protection of Children from Sexual Offences Act came into being from 2012 that includes
provisions related to punishing pedophilic offenders for offenses like child pornography,
sexual abuse categorized in penetrative and non-penetrative offenses, or attempt to abuse, etc.
There were an amendment has taken place in 2018 through the Criminal Law (Amendment)
Bill 2018, in which it enhances the punishment criteria up to the death penalty, in the cases of
rape of children below the age of 12 years along with that it also directs to conclude the cases
within the two months.
Highlights of the Amendment
 As per the new law, if the victim is below the age of 12 years, then the offender has to
go through the minimum sentence of 20 years, which is 10 years more from the
previous one.
 It enhances the maximum punishment limit to the death penalty, in the cases of the
gang rape of a child under 12 years of age; the minimum punishment is of life
sentence that is earlier 20 years while the maximum is the death penalty.
 Cases where in the age of the child is ranged between 12 and 16, then the offence of
rape, is punishable with the minimum sentence of 20 years, before amendment it was
10 years. Maximum punishment in such cases is life imprisonment, whereas if a girl
age ranging between 12 and 16 years of age and is gang-raped, the convict has to be
punished with the minimum punishment of life sentence.
 Cases, where the age of the victim is between 16 and 18 years, in such offence of
rape, is the minimum punishment of 10-year imprisonment and the maximum
punishment is of life imprisonment.
 Repeat offenders will be punished with life imprisonment or death.
 The Bill provides for time-bound investigation in cases of rape of girl children, such
investigation process must be completed within two months in the rape cases.
 The case is to be deal with the fast track court. The amended Bill explains if any
disputes lie against the sentence provided by the trial court then it has to be concluded
and disposed under six months.
 As per the newly amended law, the provision of anticipatory bail for accused is
denied if he is charged for the offence of rape of a child who is below the age of 16
years.156
Globally only 13 Nations have emerged the death penalty as punishment in the cases related
to child sexual abuse like in Rape, that are China, Qatar, Sudan, UAE, Tajikistan, Tunisia,
Bangladesh, and Kuwait. In India some may oppose the Ordinance, According to the data of
the National Crime Records Bureau, 95 percent of the rapes are committed by family
members. The conviction rate in cases of rapes of women is around 24 percent. It is 20
percent under the POCSO Act.157
After that amendment there is disturbed view are coming as to support or in against such are
that issue is generally the abuser is the family or known person or the provision of death
penalty will result in acquittal because they do not report the case, if there is a death penalty
for rape and also for murder than the abuser first commit rape and then murdered the victim
that will a big loophole to catch the offender and a loss of a life.
For the redressal from such social evils, government should focus more on strengthening the
existing laws, ensuring safety of victims and witnesses, speedy trials, and awareness
generation. Death penalty is not new thing as in the area of punishment, such provision exists
in the penal code for several heinous crimes but it does not work as prevention of crime. If in
this problem we here consider prevention as the major important topic, for that we have to
first check where is to begin. To fabricate a supportive and enabling atmosphere for the
victim to feel free to report the crime on his part, provide proper protection to witnesses,
sensitize the existing criminal justice system in particular motion exclusively the machinery
such as Courts, the agencies related to it like police, medical, free legal aid, rehabilitation,
social status in society or support from the society and the most of it ensure that convict
accused must have certain punishment for the offence made by him, along with such small
step will result to achieve hindrance158
With the amendments, there is a new age step is taken in this global world with the help of
digitalization help to secure children from sexual abuse. Child Rights Protection Provides
Online Complaint Platform to Report Cyber Crime, it can be reported by pressing the E-box
button available at the commission's website.
"Considering the growing menace of cyber crimes targeting children, POCSO e-box has been
enhanced to handle cyber bullying, cyber stalking, the morphing of images and child
pornography," this step is taken by NCPCR. Such crimes can be reported by pressing the 'e-
box' button available at the commission's website. Complaints can be sent to the e-mail
address of pocsoebox -- ncpcr@gov.in or on the mobile number 9868235077.159
It informed that the 'POCSO e-box' is an easy and direct medium for reporting of child sexual
abuse under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The
platform was launched by Women and Child Development in 2016.
Conclusion
To have a safe, healthy and supportive life is the minimum basic need of all children all over
the world. The government made comprehensive commitments to protect and prevent
children from the exploitation and the abuse and equipped them with a better answer. Even as
countries post impressive gains in child survival and in education, however, full child
protection remains elusive, in developed and developing countries alike. In the last decade, it
was the current agenda of UNICEF to protect child rights as much as possible in the
international scenario. It was broadly recognized fact that the situation of the children is same
in the developed or in the developing countries, they have protection issue moreover it if they
cross the border, it becomes more difficult for them. There is also acceptance of the
connection in relation to improved child protection along with that the feasible
accomplishment of the Millennium Development Goals. Such type of approaches helps to
depict, that the ample opportunities are there to build up the attention to the national
development plans, accompanied by the rule of law along with the other sector who
encourage and make efforts to make such social protection issue turned into reality with the
public-spirited responses. UNICEF has the capacity to merge all the possibilities or the
opportunities into reality, with the help of the evidence, to analyze and applies the lesson
experienced by the all child protection and development factors with that take the
responsibility of the administration and control on knowledge management and strengthening
and making effective use of partnership.
Chapter 3
Sexual Abuse
Sexual abuse is undesirable sexual activity, by one person on to another person with all the
arrangement and preparation to use force, make threats or takes the advantage of victims who is not
able or willing to give consent. Most victims and perpetrators know each other. Sexual abuse is any
kind of non-consensual sexual contact. It can happen to anyone either men or women or of any age.
120
Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography,
point 5
121
Kierkegaard, S., To Block or not to Block- European Child Porno Law in Question, p.5
122
A short guide to The POCSO Act , Anubhav Panday, July 25, 2017 see online text on https://blog.ipleaders.in/short-
guide-pocso-act
123
Indian Concept on Sexuality, Indian journal of psychiatry ,Jan 2013, see link on
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705691/
124
Stanford Encyclopedia Of Philosophy, see online text at ,https://plato.stanford.edu/entries/pornography-
censorship/
125
Age of Consent, see online text at https://en.wikipedia.org/wiki/Age_of_consent
126
Sexuality and Social Justice: A Toolkit see online text at, https://menandboys.ids.ac.uk/sexuality-and-social-justice-
toolkit/2-policy-and-law-what-you-need-know/21-how-law-works/215
127
128
Indian Journal of Psychiatry, 2013 Jan;55 (Suppl 2) see online text
129
Convention to End Discrimination Against Women (Article 6)
130
131
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M.P. Jain, Indian Constitutional Law Vol. First, New Delhi: Wadhwa and Company Nagpur.
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[(1984) 2 SCC 244; AIR 1984 SC 469]
136
[(1991) 1 SCC 283]
137
[(1997) 8 SCC 114; AIR 1997 SC 3021]
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[(1999) 8 SCC 591]
139
Kacker, L., Mohsin, N., & Dixit, A. (2007). Study on child abuse: India 2007. New Delhi: Ministry of Women and Child
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123
It can be done by partners, intimacy can include derogatory name calling, they may refuse to use
contraception, intentionally causes unwanted physical pain during sex, knowingly passes sexual
diseases or infections and willfully uses objects like toys, or other items without consent and to
cause pain or humiliation to the other party include in it.
Immediate reactions to sexual abuse include shock, fear, disbelief or lack of confidence. Future
symptoms include anxiety, fear or post-traumatic stress disorder. While efforts to treat sex offenders
remain unpromising not up to the mark, psychological interventions for survivors — especially
group therapy or social meetings, help of a counselor — appears effective.
“Child Sexual Abuse has the involvement of child in the sexual activity in it ,that they are not
deliberately wanted to do so but it encompasses the child whether the child is he or she it does not
affect the issue. Children are generally not in a condition to give an informed consent or either they
are not physically or developmentally prepared to do so. This is a social taboo as well as violative of
laws of land. It is evident that Child Sexual Abuse is an outcome the relationship of trust and power
where one person has the authority to control over another. Such activity must be acted with child
by an adult or by another child just to satisfy or gratify the lust and the needs of themselves. This
may include such point listed here but not limited there to:
147
148
Choudhury, R. (2006). Understanding family life in India. In A. Chowdhury, D. K. Carson, & C. K. Carson (Eds.), Family
life education in India: perspectives, challenges, and applications (pp. 31–57). Jaipur: Rawat Publications.Google
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Back, S., Jackson, J., Fitzgerald, M., Shaffer, A., Salstorm, S., & Osman, M.(2003). Child sexual and physical abuse
among college students in Singapore and the United States. Child Abuse and Neglect, 27(11), 1259–
1275.CrossRefGoogle Scholar : Stoltenborgh, M., van Ijzendoorn, M., Euser, E., & Bakermans-Kranenburg, M. (2011). A
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S.N.Mishra, Indian Penal Code, Central Law agency Allahabad; 2018
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153
Anubhav Pandey, A short guide to The POCSO Act, July 25, 2017 , https://blog.ipleaders.in/short-guide-pocso-act/
154
Delhi High Court. (2011). State vs Pankaj Choudhary, 17th August. http://indiankanoon.org/doc/613056/. Accessed
18 June 2015.
155
Andrade, C., & Sathyanarayana Rao, T. S. (2013). Childhood sexual abuse and the law: more problems than
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156
THE CRIMINAL LAW (AMENDMENT) ACT, 2018, NO. 22 OF 2018 see online text at
https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf
157
Only 13 Nations Have Death Penalty for Child Rape for a Reason, Say Activists, Oppose Ordinance
Updated:April 21, 2018, 7:03 PM IST, see online text at https://www.news18.com/news/india/only-13-nations-have-
death-penalty-for-child-rape-for-a-reason-say-activists-oppose-ordinance-1725391.html
158
Only 13 Nations Have Death Penalty for Child Rape for a Reason, Say Activists, Oppose Ordinance
Updated:April 21, 2018, 7:03 PM IST, see online text at https://www.news18.com/news/india/only-13-nations-have-
death-penalty-for-child-rape-for-a-reason-say-activists-oppose-ordinance-1725391.html
159
Child Rights Protection Provides Online Complaint Platform to Report Cyber Crime, see online text at
https://www.news18.com/news/tech/child-rights-protection-provides-online-complaint-platform-to-report-cyber-
crime-1442017.html
124
 There must be incitement, influence and coercion to engage a child into any kind of
unlawful sexual activity.
 The immoral use of child I prostitution or any other type of unlawful sexual activity.
 The shameless use of children in pornographic work and substances.”160
3.1 What is sexual abuse?
In human society sex and law are in connection with rules and regulations of relating to sexual
activity. Sex laws are different from one state to another state, as per their customs, usage, tradition
or jurisdiction of such areas, as in unlawful sexual acts is called sex crimes161.
There are laws to regulate sexual activity, with the intention to protect the participants involve in it.
Other laws are there to prescribe the behavior with the intention to define what the crime was.
As for example if a person knows that he/she has sexual disease, with any minor, without the
consent of another person, the situation of the parties are in questioned or in all that condition
unprotected sex are to be consider as a crime.
As in general law prescribe act or behavior which in appropriate or against the social norms, are
observe as a sexual abuse. Unwanted sexual contact between two or more adult, two or more
minors, between adults and minors regardless of age of consent are included in sexual abuse.
Sex crimes included in human sexual behavior that are examine as a crime. One who commits such
offence is known as sex offender. Sex crime is not listed, with any particular specification with it.
Crime of violence involve sex are regarded as a sex crime. There are much differences in societies
or state that what come in crime or not, or in which way they have punish them, in which extent it
totally depend upon the law of the land only or on the guidelines of the laws162.
Use of child as sexual gratification or any kind of sexual demand, need by any older person, person
with more power is to be considering as a child sexual abuse. It is crime punishable by law. Victim
can be girl or boy163.
Child sexual abuse includes sexual assault, aggravated sexual assault, sexual harassment and using
child for pornographic purpose. There is a strict punishment which depends of the nature of crime.
160
These guidelines adopt the definition of child sexual abuse formulated by the 1999 WHO Consultation on Child
Abuse Prevention (62).
161
Sex and law as per Wikipedia, can be seen at https://en.wikipedia.org/wiki/Sex_and_the_law
162
Sex and law as per Wikipedia, can be seen at https://en.wikipedia.org/wiki/Sex_and_the_law
163
Sexual Violence,https://www.who.int/violence_injury_prevention/violence/global_campaign/en/chap6.pdf
125
Abetment and attempt to commit such an offence are also known as an offence and punishable
under this act164.
In many countries there is law regulate the rules to prevent the sexual activity involving young or
adolescent as to relate their legal age, matter of consent, non- consensual predetermine display,
illegal visualization of sexual activity, incest (sex with close relative), harm to animal, harm to
deceased (necrophilia) and also when there is nuisance, force, unwanted favor, assault of sexual
nature, harassment, injury, fear or risk of abuse of certain professional relationship. Apparently
there is a law to maintain or control over the censorship of pornographic and obscene material as
writing, visual, online or any kind165.
When a child is forced to take part in any sexual activity it is consider as a child sexual activity, but
it need not to be always physical it can be happen online even child would not understand that this
is a child sexual abuse, more of it is a wrong to society or law also. Child sexual abuse contains a
variety of sexual offences.
Expression sexual offences include rape, unnatural sexual offences and certain deviations.
Unnatural sexual offence includes sodomy, buccal coitus, tribadism and bestiality, where as sexual
deviation is sadism, fetishism, masochism and exhibitionism.
Classification of sexual offences:
1. Natural offences: A civilized society permits only heterosexual relationship that is between
men and women. If it is contrary law it is termed as natural offences.
 Rape: A man is said to commit ‘rape’ who, except In the case hereinafter excepted,
has sexual intercourse with a women under circumstances falling under six
following description:
Firstly - Against her will.
Secondly - without her consent.
Thirdly - with her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt.
164
"Child Sexual Abuse". Medline Plus. U.S. National Library of Medicine. 2008-04-02.
165
Sexual abuse as per Wikipedia, https://en.wikipedia.org/wiki/Sexual_abuse
126
Fourthly —with her consent, when the man knows that he is not her husband, and
that her consent is given because she believes that he is another man to whom she is
or believes herself to be lawfully married.
Fifthly — with her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
Sixthly — with or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary
to the offence of rape.
Exception —Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.166
 Incest: incest is sexual relation or intercourse between persons so related by kindred

affinity that legal marriage cannot take place between them.
In India however, incest though prohibited act under the Hindu law is more or less
common among some of the tribal. The reason being, while ‘sex’ means ‘pleasure’ to
the civilized people, for primitive race of Gonds, it is a pleasure as well as the duty to
its community as also to the super divinely power that has created life. 167
2. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.
Explanation: penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this section.168
Where the accused was found guilty of having committed an offence under section 377 IPC
upon a young boy and no force was used, a sentence of six months rigors imprisonment was
held sufficient.169
 Sodomy: In this with or without the consent of the passive agent, such intercourse
comprises an offence. Both active and passive agents are punishable. It is legally
166
Section 375 of Indian Penal Code, 1860
167
See Criminology and Penology by Prof.N.V.Paranjape,12 th Edition at p.149
168
Section 377of the Indian Penal Code, 1860.
169
Fazal Rab Choudhary v.State of Bihar, AIR 1983 SC 323:1983 Cri LJ 632.
127
called as the carnal knowledge against the law of nature. As both parties are guilty,
examination and evidence of the passive agent alone are not considered sufficient to
prove guilt, he being a co-accused in the case.170
 Tribadism or lesbianism: lesbianism is practiced by one woman on another. It

involves friction of the external genital organs by mutual bodily contract for the
gratification of sexual desire. It is said that in some instances, an unduly developed
clitoris is used as an instrument of passion, while in other cases, some artificial
contrivance is employed.171
 Bestiality: Bestiality is the term applied to sexual intercourse with abreast. The
confirmation rests only on the medical evidence to constitute an offence under
section 377 of the Indian Penal Code. Very rarely semen may be found in the vagina
of the animal. The other confirmatory evidence rest in the form of animal hair on
coat or undergarment of the accused.172
 Buccal coitus: Buccal coitus finds mention in the Bible. It was practice in the town of
Gomorrah. It was practiced by both the sexes. When a female or male sucks the male
organ, it is known as fellatio. When a male or another female sucks female sex
organ, it is called cunnilingus. It is punishable under Section 377, IPC.
3. Sexual deviation or perversions: Sexual deviation or perversions relates to the mental state
of the accused. In such cases, complete satisfaction is sought but obtained without sexual
intercourse. It may be classified into-
 Sadism: Sadism conversely is when the affected person for the same object ill-treats
his partner, chokes, bites, pricks, beats etc.
 Masochism: Masochism appears when the affected person allows himself to the ill-
treated by his partner, in order to wholly sexually excite or to attain. The full
enjoyment of the act of generation.
 Fetishism: Use of object for sexual gratification is called fetishism. It is an abnormal
obsession of stimulus or object of sexual wants and fascination. Fetish object can be
an undergarment, shoes, etc.
170
See Crime Investigation and Medical Science by Dr.R.M.Jhala,3 rd Edition, at p.153.
171
See Modi’s Medical Jurisprudence and Toxicology, 23 Edition, at p.959.
172
See Crime Investigation and Medical Science by Dr.R.M. Jhala, 3 rd Edition, at p.154.
128
 Transvestim: Transvestism or eonism may be described as in a heterosexual male,
recurrent, intense, sexually arousing fantasies, sexual urge or behavior involving
cross-dressing.173
 Exhibitionism: Exhibitionism is consisting of the indecent exposure of the genital
organs in public mostly by males, to a woman, girls or children of either sex. It is
often accompanied by a lewd gesture, and even masturbation may be indulged in.
4. Sexual Assault: When an adult touch a minor for the purpose of sexual gratification is
called a sexual assault for ex: rape, sodomy, sexual penetration sexual penetration with an
object.
5. Sexual Exploitation: Offences in which an adult victimize a minor for any advancement,
sexual gratification or profit is called sexual exploitation. For ex. prostitution of children,
trafficking of a child for sexual need or child pornography.
6. Sexual Grooming: In that potential child sex offender, socially conduct or seeks minor to
make more accepting their advances. For ex. an online chat-room.
Child sexual abuse includes any physical, mental or violation with sexual intent related to a
child, generally by the person who is in trust or power or vis-a-versa to the child.
When sexually mature person design, induced, reject usual societal norms or instead of
specific responsibility they use force to get consent, to abuse or to attain any kind of sexual
gratification. They engaged or permitted to engage in any type of sexual activities to a
person who does not attain the level of maturity to understand, what is good or bad, or what
was the abuse is?
Child sexual abuse includes contacts, interaction between children or any other person, who
is older, person in trust, more knowledgeable child, and adult. An adult can be a parent,
neighbor, employee, sibling, friends, peer group, stranger, and guardian. In child sexual
abuse child is used as a preferred object that satisfied their sexual need. There is number of
cases in our country in which the persons were found committing rape upon innocent
children.174
There is a certain type that can be considered as child sexual abuse as an adult exposing his/her
genitals to a child or forced to do so, an adult touching child genitals or making a child to do so. An
adult involves a child in pornography. An adult indulges in any kind of oral, vaginal or anal
intercourse with a child, any kind of sexual gesture, signs, suggestions, remarks made by an adult
173
Lyon’s Medical Jurisprudence and Toxicology , 11 th Edition at p.526.
174
Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991
129
towards a child. This interaction is carried out against the child with the help of force, tricks, bribe,
threat or pressure.
Child Sexual Abuse includes the following: Touching (contact abuse) and Non-Touching Behaviors
(non- contact abuse) (but need not be limited only to these acts)175.
Contact abuse includes touching activities like when an abuser wanted or makes any physical
contact with the child that may includes penetration. Such as listed here
 Sexual touching means touching any parts of the body while the child have clothes or
not
 Rape or penetration consider to be putting any object or any body part inside a child’s
mouth, vagina or anus
 Forcing ,inducing or encouraging a child to indulge in sexual activity
 Making a child naked, induce to touch someone else’s genitals or masturbate.
 Embrace a child's body for sexual gratification or enjoyment
 Kiss a child with sexual desire
 Sexually touches a child's body particularly private body parts and induced or forced a
child to do the same
 Playing sexual games in the disguise natural plays
 Incite or encourage children to masturbate and include a child as a partner or spectator
 Instigate or endorsed a child to execute oral sex.
Non–contract abuse comprises non-touching behavior, likewise grooming, exploitation, and

convince or induce children to conductor execute sexual acts on the internet in the intermittent way.
It includes
 Excite the children to follow or listen sexual activity
175
Finkelhor David, Heather Hammer, Sedlak AJ. Sexually assaulted children: National estimates and characteristics, in
OJJDP: Juvenile Justice Bulletin; US Department of Justice; 2008. https://www.ncjrs.gov/pdffiles1/ojjdp/214383.pdf.
Accessed 21 April, 2017.
130
 Not following proper standard to prevent and protect a child from being exposed or get
knowledge about the sexual acts
 Meets a child with intent to abuse start grooming with them
 Online abuse consist of visualization, production or distribution child abuse images
 Allow anyone else to make it, flash or circulate the child abusive images
 Showing pornography or obscenity to a children
 Sexually exploiting or manipulate a child for capitalized money, authority or status
 Encouraging a child to watch or hear sexual acts either in person or lowering the bars of
privacy
 Looking at a child sexually
 Uncover one’s the private body parts to a child (exhibitionism)
 Watch a child in a nude state, like as while changing clothes, at the time of using the
bathroom, either with the knowledge of child or not (voyeurism)
 Any comments made by an adult that give an idea of any sexual intent to child.
 Comments and review on the sexual development of a child
 Incite and provoke a child to look and understand pornography by providing the
pornographic or obscene material.176
Sexual exploitation happens online; while the young people are induce in it generally. They are
compelled to send or post sexually distinct images of themselves, or to indulge in the sexual
activities via a webcam or smartphone, have a sexual conversation by text or online.
After such episode the abuser may pressurize the victim to send more images, videos. If they
don’t do so than the copies of conversation, images and the videos of such young person’s should be
shown to the friends and family of them.
Child sexual abuse can be done in a variety that comes as home, school, workplaces. Though it
cannot be clearly notified that it can be either in the park, public place or any other area where the
176
Parental Guidelines for Identifying and Managing the Issues Created by the “Grooming” and Sexual Abuse of
Children Under the Age of Sixteen. https://www3.havering.gov.uk/Documents/Care-for-adults-and-children/Sexual-
Exploitation/NSPCC-Parents-Advice-Booklet.pdf
131
abuser is present, Indian social scenario, lack of education, poverty, are the much more effective
causes for child sexual abuse.
Effect of child sexual abuse on children is resulting into depression, post traumatic stress disorder,
anxiety, complex post traumatic stress disorder, physical injury. Psychological trauma chances of
further victimization177.
Child sexual abuse is more than bruises or broken bones. While physical abuse always remain it
leaves their marks, not all child abuse is obvious. But ignoring children needs, letting them in a
dangerous situation, feel them worthless, immature unsupervised are also child abuse. Irrespective
of what form of abuse is result out it is always emotional harm.
3.2 Forms of sexual abuse
Sexual abuse includes any situation in an adult involves a minor or an adolescent in any sexual act,
or showing the inadequate material related to sex, or behavior was not up to the mark. Sexual abuse
has many examples in which a child is forced to do a sexual activity by another child. Generally, in
sexual abuse, a child is forced by physical, mental or using threats but on another hand, it includes
different forms of influencing that are to be considered or feel as impressing the child with love and
affection.
Sexual abuse can be classified into several categories that are in total called child sexual abuse
mention below.
Sexual assault: In this adult touches a minor for their sexual needs, sexual gratification, for
example, rape, sexual penetration with an object.178
Sexual exploitation: In this adult exploit utilize or victimize a minor for sexual advancement, profit
or gratification example: prostituting child, trafficking child or child pornography.
Sexual Grooming: Social behavior of an offender who creates or makes more favor to a child.
Minor accept their favor or advances.
Penetrative Sexual Assault: When a person is said to commit “Penetrative Sexual Assault” if
makes such attempt-
177
“Sexual Violence: Consequences” section of the Centers for Disease Control and Prevention
website: www.cdc.gov/ViolencePrevention/sexualviolence/(l
178
section 7 page 203
132
 He penetrates his penis to any extent into the vagina, mouth urethra or anus of a child or
makes the child do so with him or any other person; or
 He inserts, to any extent, any object or a part of the body, not being the penis into the vagina,
the urethra or anus of the child or makes the child to do same with him or with any other
person, or
 He manipulates any part of the body of the child so as to cause penetration into the vagina
urethra, anus or any part of the body of the child or makes the child do so with him or any
other person, or
 He applies his mouth to the penis, vagina, and anus urethra of the child or makes the child
do so to such person or any other person.179
Once the girl is proving to be minor, her consent to the act of intercourse become immaterial, while
where the victim prosecutrix is below 16 years of the age, the question of consent become wholly
irrelevant.180
Sexual harassment: Sexual harassment means a person harass, molest or annoy a child with sexual
intent-
 Utters any word or make any sound, or makes any gesture or exhibits any object or part of
the body with the intention that such word or sound shall be heard, or such gesture or object
or part of the body shall be seen by the child;
 Makes a child exhibit his body or any part of his body so as it is seen by such person or any
other person; or
 Shows any object to a child in any form or media for pornographic purposes; or
 Repeatedly or constantly follows or watches or contracts a child either directly or through
electronic, digital or any other means; or
 Threatens to use, any form of media, a real or fabricated depiction through electronic film or
digital or any other mode of any part of the body of the child, or involvement of the child in
a sexual act; or
 Entices a child for pornographic purposes or gives gratification.181
Incest: incest means a close relative or family member indulge in sexuality which is unlawful.
Much jurisprudence explains what was incest as per their rule of law or land? It depends upon the
179
section 3 of POCSO Act, ( Harpal singh V.State AIR 1981 SC 361:1981cri LJ1
180
Bhubhendra Prakash v. State,1986 cri LJ (Del)
181
section 11 of POCSO act
133
type of sexual activity, though such connection may be consequently, affinity or relationship
through adoption.182
In law, generally there are specific terminology is used for sexual activities, such as sexual
intercourse, but it many other jurisdictions they have stick to vaginal-penile sexual intercourse only.
But as in the case here, incest sexual activity is in each and every jurisdiction is always considered
as unlawful illegal in spite of their age, consent of the parties. This type of sexual activity continues
or in relation to the marriage of people as a prohibited relationship.
Pedophilia: pedophilia is a state where an adult or an adolescent is initially or particularly related to

prepubescent children that is a child who attaches puberty. Though such attraction may not be acted
such thing is called Pedophilia. A person with that situation is called pedophilia.183
Organized Sexual Abuse: It means where a variety of children is subjected to sexual abuse by
several perpetrators, as that situation where an area is not specified. In this condition, children are
included into various heinous and harm crime, that involve child prostitution, creator of child
pornography, ritualistic abuse, illegal, unacceptable usage, brutal or bizarre act and in human sexual
practices or torture.
There are circumstances, where a child is subject to organized sexual abuse. As they have an
abusive family atmosphere. This abuse may involve a family member, family friend or people who
pay for abusing the child. On the other hand, children are inserted into organized child sexual abuse
thru the prepator, though they are in school, street, religious institution or poor, homeless, not stable,
uneducated family.
Generally, parents are involved in organized sexual abuse cause they have an unhappy family life or
they are the background of abuses in the past life, outside the family. All kind of abuses are
interconnected in it, but the basis is by parent and relatives. It is actually different from any other
offence, as in women are considered as a prepator. Reason for that they have raised in such
environment where an organized sexual abuse actually is normative, and as an adult they have
power to sexually abuse in an organized sexually abuse with the male offenders.
Indicators and Effects
Indicator and effect show what a state of mind of a person. It indicates the actual situation or
understanding of an individual entity. This is a real tool to show their feelings of a person. Though
sexual abuse has marks on the persons mental or physical conduct, such are not remaining normal,
182
https://legal-dictionary.thefreedictionary.com/incest
183
https://www.revolvy.com/page/Pedophilia
134
as the previous one. Such behavior convey what was the problem through the victim is gone through
and to clarify such behavioral issues there are two types184, that is
1. Physical indicator
2. Behavioral indicator
To identify what was the problem in it, when it arises. Though behavioral indicators are more
precise or quickly to identify as compare to a physical indicator.
Physical indicators
 The problem in sitting and walking
 Abnormal behavior
 Nervousness related to illness
 Urinating problem and defect
 Unusual infection
 Evidence of physical pressure or trauma
 Bleeding in the genital, anal or oral area
 Discharge, itching, and soreness in the body
 Any injury in breast, buttocks and thighs
 Sexually transmitted diseases in any child
 Bruising and brushing body parts
 Pregnancy
Behavioral indicators:
All behavioral indicators are not conclusively a sign of abuse. Though it is in and all connected with
the reaction or the sign, language, execution of any working give an alarming effect of that is can be
result out as in abuse so they are:-
184
Training Manual on Protection of Children from Sexual Offences (POCSO) Act & Rules 2012 for NGOs/ Youth Clubs/
Youth Groups
135
 Low learning skill, decrease in academic grade
 Lack of concentration and poor memory
 No interest in creative or physical activity
 Behave like a child as thumb sucking, bed wetting or speech difficulty
 Sleeping problem
 Lack of confidence, poor esteem, depression
 Constant reassurance needed
 Stubborn, cranky, annoyed
 The sudden occurrence of money and gift
 Complain of stomach pain, headache, body pain or nausea, without any physical problem
 Poor self-care and low in hygiene
 Develops fears, phobia, related to the specific person, place connected with abuse
 Withdrawn from society
 Wear provocative clothes
 Sex knowledge, use of abusive language
 Sexual influence recreate with their drawing, playing, singing
 Sexually abusive behavior towards child younger to them
 In appropriate sexual behavior according to age
 Child run away from school or home
 Behavior to harm themselves with the usage of alcohol, drug, body malnutrition
 Suicide attempt
 In conflict with the law and its provision
136
Effects of child abuse:-
Every type of abuse and neglect has lasting impression and scars. They may be physical and
emotional, emotional scar has ever lasting effect to whole life. That is shakes the child’s sense,
positivity, child esteem, trust, ability to work, ability to have relationship and so on 185. That are
mention below:-
1. Relationship difficulties and trust problem:
If one can’t trust their parents, then whom can he trusts? Generally abuse is done by first
relationship like caretaker, parents, those who are fundaments of a relationship in a child life. Who
is duty bound to give safe and protective environment. Child is more dependent on emotional and
physical need as to provide love, care and affection.
Because these relationship is a base structure, which empower them to get to know who are trust
worthy or how to trust people. These situation are result out in difficult condition that child has fear
regarding relationship, apprehension of control or fear of being abused again.
2. Feeling of worthlessness or damaged:
If someone is always told that you are fool, stupid, not a sound mind than it become very difficult
for those people to come out from these feeling, reason behind it is a cause as a child, thought and
saying give impression on their mind which remain constant in their back of mind. Such thing child
feels as a reality. A constant repetition of anything creates an atmosphere that all things are true.
This is a reason that child can’t built self confidence in them. Sexual abuse victim or survivors, feel
shame, worthless, damaged with this stigma or tag and struggle for the remaining life.
3. Problem in managing the feelings:
Abuse children cannot show off the true feelings reason is they always question their identity and
dignity coming out in unexpected ways. They always struggle with depression, anger, anxiety. They
can choose different ways that are not good to survive a life. They feel they don’t have a life or to
end their life.
4. Health and behavior issues:
Generally children who are victims of sexual abuse have different type of health issues. Reason for
that they cannot express what is done to them or done by whom. For this problem they are at greater
185
http://www.joyfulheartfoundation.org/learn/child-abuse-neglect/effects-child-abuse-neglect
137
risk, because they become more emotional, anti-social, psychologically challenged and physical
collapse. They often report post traumatic stress disorder and suffer sadness problem, eating
disorder than any other person or a child of this age.
5. Drug and alcohol problem:
Drug and alcohol problem are inclusively harmful to human society, though it is dangerous
to a child. To overcome this stigma victim generally choose these thing only. The excessive use of
drugs and alcohol increase suicidal thoughts and attempted suicide.
6. Teenage pregnancy and promiscuity:
Teenage pregnancies are result out of rape, molestation or attempted rape of young girls.
Age of offenders is mostly from the range of 25 to 27 years. Girls are of sexual abuse, sexually
promiscuous, teenage prostitute have health issues like pregnancy and abortion.
Effects of child abuse diversify from child to child with each and every child needs, behaviors,
situation, condition or their own mechanism. The consequences are depend on the factors prime
family members, age of child, sex of child, frequency of abuse, connection with the abuser and
available support system to overcome it186. Such common effects are mentioned below
 Less confidence in others and themselves
 Terror and anxiety
 Shame, guilt or hate
 Isolation from their body
 Withdrawal from society
 Anger and depression
 Apprehension with sex and dislike it
 Questioning their gender and sexuality
 Addiction of drugs and alcohol
 Mental disorder and suicidal thoughts
186
Effects of child abuse and neglect for children and adolescents can be seen at
https://aifs.gov.au/cfca/publications/effects-child-abuse-and-neglect-children-and-adolescents
138
 Eating disorder187
 Sexual offending
This effect of child abuse affects the health issues as well as mental or social challenges. People
who experience abuse in childhood have unfavorable health condition and it become evident in later
younger stage. Such conditions are like
 Mental situation shows depression, anxiety, anger, nervousness, post traumatic stress
disorder, lack of self confidence and insomnia are reported by the person who have
gone through the child sexual abuse.
 Physical health problem are transmitted disease like HIV, unintended pregnancy,
alcohol, obesity, hypertension, frustration, injury to bodies and drug abuse are
experienced by the victim of child abuse.
Irrespective of above clarification there are some behavioral issues are listed below
 Wetting/ soiling - when a person lose the control over there bowel and bladder it is termed
as wetting. It is a sign of sexual assault. It was embarrassing and humiliating also. It can be
recognize by the result of wetting that is changing sheets, clothes, washing, washing without
any reason.
Bed wetting is symptoms of a child who is sexually abused; it is do ne due to nightmare, fear or
from a terrifying dream. It may be done when a person feel helpless, lack of confidence, lose their
power or control over the body. It is a reflection of losing their owner ship over the body or skill
which they had. Child looses the ability to respond to their mind and connect with the body, become
confuse to regulate or to control their habit.
 Nightmares – nightmares can make child terrified of the dark and make their sleeping
schedule a difficult condition. All children had bad dreams from time to time but children
who are sexually abused have long-lasting nightmares in their life. The reason behind this
they have gone through sexual assault, harassment, exploitation and many more. They have
their dreams regarding this only or know, what was coming in it. This dreams or nightmare
shows their fear, anxiety, lack of self-confidence and control over them.
187
Brewerton, T. (2007). Eating disorders, trauma, and comorbidity: Focus on PTSD. Eating Disorders, 15(4), 285-304.
139
 Persistent pain – this pain has no physical injury. These will develop in connection with
abuse only. It is like aches and pain during the assault and it will remain in the memory of a
child also.
 Clinginess – clinginess is an obsession with the person, product or either anything without
any compromise. This is done by children cause they want to reassure as to love, care or
want security for them only. Children are tries to build a sense of safety, through their
relationship with an adult. They attempt to acknowledge the good and bad touch and their
cuddles, demanding attention. In reality, they make an effort to heal their injury.
 Aggression – aggression is the basic step to show their anger, force, frustration or fear. It
needs to be reconciling, or attention is to be given to correct the anger. A child fine
opportunity to discharge their feelings. This not accepted by society or it creates
misunderstanding about their behavioral issue because anger always reflects the aggression
of people.
 Sexualized behavior – When children are sexually distinguished, what is right or wrong, as
in the cases of sexual abuses. It becomes invalid what they learned before about their bodies.
If a child is a victim of sexual abuse then in a near future he will try to do the same offense
which done on him because their curiosity is raised as they don’t have the intellect to
understand it. Sexual acting is done by a child to report the case of child sexual abuse. Child
repeats the same actions done to him in the same way as an offender done. It also involves
children’s approach to an adult in a sexual way.
 Triggers and recovery - every person who suffers from this, has gone through trauma and
always remember that. This feeling always awake and remain in mind can be termed as
‘’triggers.’’188
Triggers are the ignition which always reminded that the situation or condition which is difficult to
control when parents do not know the reason for it. Children are triggered by this problem is solved
by the parents. Because parents encouraged, discuss or make a solution to the situation which may
occur as a result of it.
188
Brown, J., Cohen, P., Johnson, J. G., & Smailes, E. M. (1999). Childhood abuse and neglect: Specificity of effects on
adolescent and young adult depression and suicidality. Journal of the American Academy of Child & Adolescent
Psychiatry, 38(12), 1490-1496.
140
Although many survivors of the abuses have come up with the lively condition and prove the ability
to re-stand with the help and support of family and friends. Therapies empower them to take control
of their feelings and live a good, healthy and happy life.
3.3 Who are the Offenders?
Offender comes from any sphere of life, cannot point out or recognize by their behavior. That’s
why there is a need to check the reaction, behavior or condition that includes risk irrespective of
individual opinion. An adolescent can sexually abuse a child or their peer group but the situation
varies in the abuse. Generally, people think that the offenders are like shadowy. In fact, many time
offenders can be from family to nearby person. Child sexual abuse can be done by in a family by
parents, step-parents, sibling and other relatives. Most of their time it is done by the person whom
the child has trust or knows as a family, friend, neighbor, caregiver or teacher.
Abuser almost is a known person and that is beneficial for them to fulfill their will as to abuse the
child. There are certain ways in this chapter that shows the conduct and behavior of the abuser.
Which elaborate the certain types of an abuser as a different context? On this basis types of the
abuser are explained below:-
Grooming - For abusing a child, abuser grooms with a child or use this as a practice or tool for
abusing a child irrespective of sex. Grooming is a technique to gain faith from a child and adult
connected to them. To obtain a direct approach with a child and enlarge the opportunity that the
child will not observe the sexual favor of the maker was improper or not justify. At large scale, the
offender can use physical force and threats for abusing or sexually assaulting the child189.
The motive of grooming:-
 To reduce the chance of discloser
 To reduce the possibility of a child is believed
 To reduce the feasibility of being detected
 To control the other adults near the child
 Probability to have some soft corner from child
 To conceive trust or faith into a child, that he/she has a support system
189
Parental Guidelines for Identifying and Managing the Issues Created by the “Grooming” and Sexual Abuse of
Children Under the Age of Sixteen. Can be seen at https://www3.havering.gov.uk/Documents/Care-for-adults-and-
children/Sexual-Exploitation/NSPCC-Parents-Advice-Booklet.pdf
141
Grooming behavior:-
Not all child abuse includes grooming yet it is the most common thing or technique used by the
offenders. It is generally started with ultra nice performance, that is not recognized as something
wrong in it, like paying attention, care, affection or love. A lot of victims of grooming and sexual
abuse did not acknowledge, that they are exploits or either feels that grooming is a part of the abuse
process.
In many cases, offenders try to keep their relationship a secret. Abuser also makes cut off the child
from the persons, whom he/she is close. By telling that person would not understand their
relationship, love, and feelings. Touching in a way, create confusion to the child as hugging,
praising and licking either a game or accidental. This is a step forward other than general affection,
so the child itself confuse with it. A child generally thinks of it, while bathing, dressing and
bedroom routine. The main purpose of the grooming is to check that the child will not disagree and
keep it confidential.
Conduct of potential prepator:-
 An adult specifically attract in a particular child
 An adult who continuously tries to be alone with the child or multiple children
 An adult who has an obsessive attachment to a child
 An adult who give special treatment, make happy or to do anything to make happier
 An adult who is not interested in family but shows favoritism to a child
 An adult who gain the trust of parents or caretakers of child and become emotionally
dependent
 An adult check the trustworthiness of the child to protect themselves and to verify that he
will not tell about anything to anyone
This process can be used by an abuser, which can be, can’t specifically describe the reason for it. On
the other hand, a person who abuses the child is not who has a psychiatric disorder. They are
generally not identical from anyone else. Commonly an abuser is a “normal” person who lives a
“regular” life and familiar to the victim. Although has no discomfort or anxiety on having sexual
abuse with the children. Such a person cannot be distinguishing or recognized as an initiator but can
be categorized that this behavior stipulates that the person become an abuser in any condition.
142
Demographics:- Abuser are may be relative, family, friend, colleague, a neighbor of the victims
rather than the stranger. Generally, offenders are known to victims. Moreover, the male offender is
more than female offenders, in spite of this percentage may fluctuate.
Typology:- In the1970s and 1980s research has been done to classify offender based on their
motivation and traits. Child sexual offender was categorized into two groups that are “fixated’’ and
“regressed”.190 Fixated were described as having a primary attraction to children, whereas regressed
had largely maintained the relationship with other adults and were even married. There was research
that show that sexual orientation or sexual abuse is not only limited to the victim or the sex only but
it also has a relationship with others. For example, it can be understood as a man who abuses male
victim may have relationship with women, it is not restricted to a particular sex. In 2002 Holmes
and Holmes expand the types of an offender and their psychological character. They are classified
as below. There are two types situational and preferential.
Situational: It does not prefer children but offend circumstances condition. They are divided as
below. 191
 Regressed: Typically has a relationship with adults, but a stressor causes them to sick
children as a substitute.
 Morally indiscriminate – All around sexual deviant, who make comment other sexual
offenses unrelated to children.
 Naïve: Often mentally disabled in some way, find children less threatening.
Preferential: It means a true sexual interest in children.
 Mysoped: Sadistic and violent, target stranger more often than acquaintances.
 Fixated: Little or no activity with old age or described as an overgrown child.
Pedophilia: pedophilia is a situation, in which adult is initially attracted to a prepubescent child,

either they act upon or not. A person with this attractiveness is called a pedophile.
Pedophile, sometimes used as a term for those accused or convicted accused of child sexual abuse
involves both young adolescents. Though it is not necessary that all the sexual offenders are
pedophiles or all pedophiles are indulge in the sexual abuse of children.
190
Groth and Birnbaum 1978
191
https://en.wikipedia.org/wiki/Child_sexual_abuse
143
In spite of that, the term pedophile is a debatable term, which arose in the 1980s and been used by
such organizations such as UNICEF, UNHRC, and WHO for reference of Child sexual abuse,
sexual violence used against children and child trafficking, child prostitution and use of a child for a
pornographic purpose.
Recidivism: The term recidivism means, the tendency of a convicted criminal to offend or to fall
into the criminal background.
Recidivism rates for sex offender are less than, general criminal population. Child sex offender rates
may vary. Many of them re-offend after their release. Risk of re-offence was highest in the first five
years after release, but it cannot specifically say, it only depends up to the person or their social
status or surrounding.192
Child and young adolescent offenders: this is one of the type of offenders as in that no adult
directly involved, though it was done by child, adolescent, or youth it is termed as child on child
sexual abuse, any of this sexual activity results out between them without consent, coercion, force,
threat, using tricks, without equal equation or emotional influence to pressurize to participate.
Teacher: A teacher is the noblest profession but as the time changes the person, who has more
power of trust, loses the dignity or indulge in such crime. The reason is they have the power to
control the child.
Victim of child sexual abuse, harassment or violence committed by their teachers or other school
personnel’s, cause they have authority and guardianship rest into them. A female child is more
pressurized as compared to a male child because there is a threat of “red pen”. Sexual abuse
involves sexual advance or sexual favor.
Casual Factor: Casual factor of a child means sex abusers are not specific or general. Commonly
assumes that any bad experience of sexual abuse is a great threat to children to become an offender.
Though it was not true if there are some help or confidence maintain in the victim by the society it
will result out like a mature adult. The abuser uses emotional twist to smooth their offences, such as
a curtain or diminish the blame of the abuse and make excuses or defend them.
There are the conditions in which the abuser may be fit as offenders of such category. Although the
offenders can be anyone, irrespective of any criteria there is fix a formula that he is the offender or
that is an abuser.
Conclusion:
192
https://en.wikipedia.org/wiki/Recidivism
144
In this specific chapter we emphasis on the types of sexual abuses, as to recognize what are the
offences means and what is their form in general to identify the crime. Sexual abuses are very
common, to cure out or to fight this heinous crime it is needed to identify the path in which way the
crime and where the offender comes in. There are certain behavior’s of person’s consider to be an
offender and the person whose behavior must be alike different from others are coming in that
category. Preparation and execution of crime are reflected in the behavior of such an offender in the
form of grooming. Generally, the offenders are known or acquaintances of the victims or their
relatives. It is a social evil that exists every means everywhere that can’t specify primarily without
happening. So here we explained the certain nature, steps or intuitions is to be considered in the day
to day life and also make children aware as well as the parents and also the society that a single clue
is always a remarkable attempt to stop the execution of the crime.
145
Chapter 4
Role of Bodies
“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.”- KOFI ANNAN193
From the last two decades, sex crime are more brutal or life-threatening as the arising heavily with
the social change. This shameful crime is not gender bias or not age bias. Children are at the risk of
becoming a target of such offences. Those offences children can’t understand what is happening
with them. The main problem is that they can’t stand alone against such issues or react to this. The
only leftover in the hands is a pain over the soul and body that remain long lasting.
The inability of children and society to fight against such inhuman conduct there is an iminent need
of the act who relate on the specific area of sexual abuse related to a child, sexual harassment,
exploitation and to reduce the trauma faced by the child.
In this chapter, we deal with the role of each and every supportive element to implement the
POCSO act in its spirit with the intention to secure the better interest of the child. POCSO is an
independent act it works as a boon to the victim only when the surroundings are willing to fulfill
their duty towards them. There are many integral parts of this support system to work as they have
their share in provide service related to their technical knowledge and represent it to the others and
explain as an inference of such diagnoses done by them in regard to complete their jobs.
They are many but some important are covered here are likewise Government, Commission or
legislature like Child Welfare Committees, District Child Protection Unit, Juvenile Justice Boards,
Judiciary include Magistrate, Prosecutor, Special Courts, Support Person, District Legal Service
Authority Act or Legal Representative, Police Department, Medical Department like Medical
Officer, Nursing Staff, Schools or Institutions, Media Awareness through Print, Social, Online and
NGO working with the POCSO. This all stakeholder have their own parts to comply to fulfill the
respective demand of the act, in a very specific and prescribed way.
4.1 Role of Government Departments:
In 2008, respected parliament imitates the process related to the POCSO Act and it becomes a
debatable topic among the ministries, state government, civil societies, and experts. Thereafter
193
https://www.unicef.org/sowc00/foreword.htm
146
receiving president assent on 19 June 2012 and came into effect on 14 November 2012. POCSO Act
is needed in India, cause 40% population is below the age of 18 and out of these 53% children
reported that they are experience one or more form of sexual abuse in their life, a survey was done
in 2007.194
Though it has all tools it remains unknown to societies, unimplemented, not in the knowledge of the
people who are in power to apply it. From 2012 changes are made day by day or still reforms are
going to be made with the development or change in the social system.
POCSO provides help trough SJPU and local police who are there to serve care and protection,
rehab or relaxes on the complaint of the victim as soon as possible.
Emphases given on the speedy disposal of the cases, for those purpose special courts have been
established. In Rajasthan state 55 new courts are established as each court in each district related to
the cases of crime against children, especially rape and to ensure that accused are convicted at the
earliest.195
Regardless of all these, central or state government make all effort at every level to broadly explore
are make popular through media i.e. television, print, radio and more of it they arrange training
program for all the members connected to the Act, in spite of these the act is almost unknown.
POCSO is a wholesome law, the government must create a mechanism to implement it and educate
its officer and the stakeholder related to it. All stakeholders include police magistrate doctors CWC,
district child protection of the unit. Prosecutors, juvenile, justice board, special court, support
person, district legal service authority, media and others should apply the POCSO Act in the letter
in spirit. The best interest and well being of the child survivor must be regarded as being of
paramount importance at every stage of the trial. Each stakeholder under the Act shall act with
sensitivity to the healthy physical, emotional, intellectual and social development of the child196. The
Supreme Court laid down various guidelines for stakeholders under the Act and held that in cases
where the perpetrator of the crime is a family member, utmost care must be taken bearing in mind
the best interest of the child is of paramount consideration.197
4.2 Role of the Commission in Providing Care in the Present Legal Framework:
194
http://nipccd.nic.in/reports/posco/pol.pdf)
195
https://www.thehindu.com/news/national/other-states/rajasthan-govt-approves-setting-up-of-55-pocso-
courts/article24574423.ece
196
Preamble to the POCSO Act
197
Shankar Kisanraom Khade vs. State of Maharashtra 2013 (6) SCALE 277,
147
The national commission of protection of child rights (NCPCR) was set up in March 2007 under the
commission for protection of child rights (CPCR) Act, 2005. 198NCPCR is a statutory body under the
administrative control of the ministry of women and child development, Government of India. Child
rights enshrined from Indian laws and UN convention on child rights. Commission makes laws
policy program administrative control related to child rights.
The commission works from national policies, state, district block level for taking care of each
region. As to identify every child they took accurate laws and experience into the consideration at
higher levels. Thus the state government has its roles and sound institution building process and
power to do so.
NCPCR is involved and recognizes universal rules related to child policies in India. For
commission, the age of the child is 0 to18 years. Policies make the priorities to the vulnerable
children that mean focus on backward class or communities and children under certain situation.
Therefore it is considered as making a larger area in favor of protection of child rights, it easily get
to know or visible to gain confidence. The commission, give equal importance to all the rights of
children.”
The function of the commission: are as follows
 Its reviews and checks the protection laws recommended by the state government. They can
submit a report annually.
 NCPCR has the power to deal civil court suit in the following matter
 Summon attendance of any person examination on oath.
 Production of any document.
 Evidence of affidavits
 Question on any public record,
 Examination of witness and documents
 Though national commission is prohibited from enquiring any matter pending before
state commission related to child rights.
 NCPCR make a recommendation after reviewing existing policies programs for the proper
implementation.
198
http://ncpcr.gov.in/
148
 To promote child literacy program and awareness related to child abuse.
 To inspect the juvenile home, custodial home, observation home, shelter home either run by
the central, state or any other institution.
 Make an inquiry to the complaints and take suo- moto action to it.199200
Functions of Commission under POCSO Act: the commission of the POCSO Act and POCSO
rules 2012 are,
 To monitor and implement the provision of the act.
 Establishing special courts by state governments.
 To monitor the appointment of public prosecutor by the state government.
 To monitor the formulation of the guideline by the state government.201
Working of Commission: for completion of an inquiry commission takes the following step
 The commission may recommend to the particular government or authority regarding the
proceeding for prosecution or other suitable action.
 The commission may approach the Supreme Court or high court for the direct orders or
writs.
 Commission makes the recommendation to grant interim relief to either party to solve the
matters.
The commission submits their annual and special reports to central and state government related to
it. These reports along with the memorandum of action present to the respective legislatures.
POCSO e-Box for children
199
Citizen’s Charter of National Commission for Protection of Child Rights
200
National Commission For Protection of Child Rights
201
http://ncpcr.gov.in/index1.php?lang=1&level=1&&sublinkid=14&lid=607
149
Protection of Children from Sexual Offences (POCSO) e-Box is an online complaint box for
reporting child sexual abuse. The National Commission for Protection of Child Rights (NCPCR)
has the certain initiative to help children in a way that they can report such crimes directly to the
Commission. So in regarding this, there is an online complaint management system enables for easy
reporting and action may be taken timely against the offenders under the POCSO Act, 2012. E-Box
is very simple to operate and will help to maintain the confidentiality of the complaint.
How does it work?
 To access POSCO e-Box, The link is also incorporated prominently (as shown below) in the
home page of National Commission for Protection of Child Rights (NCPCR) website, in that
a user has to simply press a button shows as POSCO e-Box.
Step-1
There is a window showing an animated movie that shows and explain that whatever happens to the
children is not the child fault they need not be feeling guilty and shameful about this incident.
NCPCR is ready to hear and solve the problem as a friend as soon as possible (registered).
Step-2
After the user presses the arrow on the page, it navigates to another page where he/ she have to
select at least one picture option (describing the category of harassment).
150
Step-3
Fill the form with details such as mobile number, e-mail, and description of the harassment followed
by the ‘submit’ button. After pressing the submit button the complaint is considered to be registered
and auto-generated compliant number is flashed and given for the reference.
POCSO e-Box now uses to report Cyber Crimes:
With the development of the technical age, there is a development step is taken by the National
Commission for Protection of Child Rights (NCPCR) in the form of POCSO e-box in that the child
victims of cyber crimes can now lodge their complaints directly to the Application. Considering the
growing menace of cyber crimes targeting children, NCPCR has now enhanced the scope of
POCSO e-box to handle cyber bullying, cyber stalking, the morphing of images and child
pornography.
This portal can be used by the child victims themselves or through their friends, parents, relatives or
guardians anyone. They can report any cyber crimes just pressing the e-box button available at the
Commission’s website, www.ncpcr.gov.in. The Commission has e-mail id where they can register
151
their complaints and the phone helpline number to reach each and every one in every possible way
that is shown: email id: pocsoebox-ncpcr@gov.in or mobile no.: 9868235077.
At the present time, child abuse comes in a different form and with different channels via mobile or
any digital technologies or either can be elaborated in always in unique form. About 134 million
children of India have access to mobile phone and is growing as faster with the time. The same can
be considered in the term of use of the internet. However, it gives chances to get them all over
knowledge by accessing the useful material for the educational and learning objects but nothing
comes free in this world so it has there drawback as there is no proper training of digital literacy as
well as online safety measures considered to be dangerous for the cybercrime202.
Working Related to POCSO: NCPCR had taken several steps to make a proper implementation of
the act on the issues checked by them which includes, a transparent “online complaint system” (E-
Bal Nidan) to ensure timely disposal of complaints, violation of rights. 203 National conference for
implementation of POCSO Act, organized in association with MWCD, launched POCSO E- Box/
E-Mail/ SMS or NCPCR’s website for easy and direct reporting of the cases and issue advisories to
DGPs of all state to generate awareness among children. An awareness program for reporting a
cases of sexual abuse and use of POCSO E-box, a consultation of cybercrime, head of cyber crime
cell of all state/UT developed a “Resource Book on Protection of Child Rights” for the use of
SCPCR’s, create a mass awareness campaign about the provision of POCSO in Delhi with support
of multi-stakeholder. NCPCR are organized 39 State level/ District Level training workshop cum
awareness program on POCSO Act, 2012 during the year 2016-2017.
4.3 Role of government in providing care in the present legal framework:
The Integrated Child Protection Scheme (ICPS) is a government program to help, secure and the
safety of the children with the special significance on the children who are in need of care and
protection, juvenile, a child in conflict with the law and other vulnerable children. It’s the main
purpose to create a central structure to provide standard pre-existing laws and scheme in India. It
was proposed in 2006 and implemented in 2009 by the government of India. The ICPS controls at
the state level by the state child protection comities and at the district level by the district child level
societies.
The Government of India Level

202
http://ncpcr.gov.in/index2.php
203
section 44 of POCSO Act, section 3 of NCPCR, section 17 of CPCR 2005, SCPCR
152
 Ministry of Women and Child Development (India)
 Central Adoption Resource Authority
 Central Project Support Unit
 National Institute of Public Cooperation and Child Development
State Government Level
 State Child Protection Society
 State Adoption & Resource Agency
 State Project Support Unit
 State Adoption Recommendation Committee
District Level
 District Child Protection Unit
 Child Welfare Committee
 Juvenile Justice Board
 Special Juvenile Police Unit
 Sponsorship Foster Care Approval Committee
 District Inspection Committee
Sub-District Level
 Block Level Child Protection Committee
 Village Level Child Protection Committee
Integrated Child Protection Scheme: The Integrated Child Protection Scheme204 is a government
venture for child welfare in different areas, through different forms for securing channelize or rehab
them. It is a conceptualize program and shows a fresh thinking in the government sector.
204
http://wcd.nic.in/integrated-child-protection-scheme-ICPS
153
 To secure the child either it belongs to the poor family, institution child, street child, a child
who is in need or any other child who are comes within its purview.
 The whole responsibility regarding funds, norms, variables are on the state government.
 Priority of ICPS is to restore children to their homes and reunite their families and provide
monthly sponsorship or remuneration.
 The best way of rehabilitation is adoption and it is controlled by central authority.
 Administrative work is done by the members of CWC and ICPS working are traditionally
different from them.
 Central authority set goals and monitor, justify the huge manpower involved in district level
work, support each other, increase interlocking institution structure.
 ICPS have adequate manpower to list out child care institution in each district as they are
registered under the Juvenile Justice Act, the state child protection act or as an NGO. They
prepare categorize information.
 Large promotional campaigns are arranged to include aanganwadi, health center, community
center, police, CWC, and the judiciary.
 Introduction of FOSTER care for the children who have no home to go to the vacations
 CWC should take part in a centrally organized training program,
 E-learning can be explored in their area.
 Center can terminate funds over time i.e. 3 years
 NGO must take his step forward without government funding.
 They have big opportunities to tie-up with corporate or retails to encourage or imposed the
funding organization.
The object of ICPS is to give a nation a youth population of contributing members and not just as a
community of adults who have been alive only to add the nation’s burden.
Role of state government for effective implementation of POCSO act: The POCSO Act 2012
contemplates that the state government shall:
154
 High Court for each district by the notification in the official gazette in the consultation of
chief justice, a court of session to be a special court for the cases of POCSO.
 Set up the state commission for the protection of child rights.
 Maintain the ICPS structure, training to the entire stakeholder related to POCSO.
 Compensation to be awarded from “Victim Compensation Scheme” through special court

for rehabilitation of child victims.
 Training and awareness to be made for child protection organization.
The government sanctioned the POCSO act to protect the child victim, from the judicial process,
child-friendly mechanism with the main motive to provide care protection and rehabilitation to the
child.205
4.4 Role of Judiciary in Providing Care in the Present Legal Framework
Judiciary plays a very vital role in promoting child rights. Public interest litigation is used to help
and support the protection of the rights of children. For the interest of child, courts implements the
progressive laws and interpret ate the restrictive laws. They used innovative method to give
complete justice such as judicial activism that is with the protection of rights and prosecution of
exploiters.
POCSO is gender neutral provide protection to all children below the age of 18 years irrespective
gender. Trials to be conducted in cameras accompanied with the presence of parents or whom the
child has trust. Identity of the child is not to be disclosed and not to be called repeatedly to testify in
court.
All precautionary measures and guideline let down by Supreme Court i.e. strictly complied, the
judge has to strike a balance between protecting an accused the right to a fair trial and rights of the
victim.206
Judicial system avoid re-victimization by providing special courts and child-friendly process
although child have parents or trusted person present at the time of evidence they can call for help
for interpreter special educator or any profession. To decrease the re-victimization of child evidence
is taken through video link and it is recorded within 30 days from the cognizance and the disposal of
the case within 1 year from the date of offence is reported.
205
http://nipccd.nic.in/reports/posco/jud.pdf
206
State of Punjab v Gurmeet Singh 1996 (2) Sec384 :, Sakshi v Union of India AIR 2004 SC3566
155
Special courts are there to decide the amount of compensation paid to the victim that is used for the
child’s medical treatment and rehabilitation treatment.
Under the POCSO act no direct question can be asked to the victim by the defense counsel it must
be asked through the judge. It may be either in written or an oral form.
Supreme Court interprets Section 35 of the POCSO Act that is accused can be discharged from the
burden of proof still the approach of the innocence of accused is law of the land. It is the duty of a
judge to check out the accused to understand and find out the accused has committed in the offence
or not.
Working procedure in the POCSO Act
Recording of child statement by the magistrate, it should be in the exact language of a child. The
statement must be recorded in the presence of a child, child’s parents or any other person of child
choice. For audio-video recordings help of qualify translator or interpreter can be taken. It is the
duty of the magistrate to give a copy of a police report on this issue to them.207
Working of the special court:
 Trial to be conducted in camera and in the presence of child-parent or any person of child
choice.208
 In between the trial not direct question to be asked, all the question of SPP or the council of
accused should communicate to the special court or the will put this question before the
child.
 All the evidence of the child to be recorded within 30 days from the cognizance taken by the
special court if there any delay the reason should be recorded.
 Special court takes all necessary step that child should not be seen the accused during the
trial. Accused can only hear the child’s statement and communicate with his lawyers. It is
generally done through video conferencing or by using a single visibility mirror or curtains.
The Responsibility of Special Court:
 Allow frequent interval for the child.
207
Section 164 of CRPC Act, Section 25 of POCSO Act
208
Section 37 The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
156
 Making a child-friendly atmosphere with the help of a family member or the person who are
in the trust.
 No summoned to the child again and again.
 To maintain the dimity of a child no aggressive question to be made.
 The identity of the child should be taken as secrete.
 The main object of the special court is to complete the trial within one year from the date of
cognizance.
 The special court has the power to grant interim compensation for relief and rehabilitation
The Public prosecutor is appointed by the State Government to conducting the case. Special
prosecutor takes care of child privacy and have a sensitive approach and action to complete the
object of the act.209
Legal aid: A lawyer who conducts the proceeding under the instruction of special public prosecutor
and assists the prosecution with the permission of the special court are the services considered as
legal aid210.
Judiciary has all the steps to reframe, conduct, implement, the protection of the child from sexual
abuse. They provide child protection machinery or encourage the child to seek redress from their
suffering and begins the process of rebuilding, and restructure of the child line.
4.5 Role of Police Providing Care in the Present in the Legal Framework:
Police must be careful in dealing with the child victim of sexual abuse to meet the motive of the act
and functions their provisions as in the spirit of the law. The act has specific duties provided by the
law for the sensitive handling of the child. In this act, the police officer working with the case has
continuous, undisturbed and constant communication with the child. For this, there are certain
obligations on the police officer in discharging their duty.
1. The whole act is to protect the child interest and dignity.
2. Police are authorized to do the treatment or medical examination.
3. Police have to help and convey significant information to the child and their parents
throughout the prosecution.
209
210
157
As in POCSO, there is a path for police to maintain the relationship with the child as regard to the
provision, procedure, and execution, on the other hand, ensure the administrative actions. Police is a
public figure of the State that shows of working of a State as related to the child victims that is
protection, treatment and rehabilitation are predefined. It is a transformative vision to see a child as
an independent personality who has rights irrespective of the immature or dependent person who
needs to be protected.
As in the POCSO Act, there are certain provisions who explain the working of police in the cases of
child sexual abuse.211
 Police officer has to record the report in writing, mention entry number, read the report for
the verification and enter in a daily book as a record to be kept in the police unit.212
 FIR must be register and a free copy is to be given to the in format.
 When a child reported the case it should be in the language age of the child and understood
by the child, if it not than police must arrange an interpreter or a translator
 It is the duty of the police to check whether the child needs care or protection.
 If for any reason the local police or SPJU feels that is the child is in need of care and
protection than the record the reason and writing and make all necessary arrangement to
provide care and protection that means admission in a shelter home or to the nearest hospital
within the 24 hrs of the report.213
 Without any delay or during the hrs of the matter must be present before the CWC, special
court or if there is no special court than the session court to be present in the session court.
 Right to Privacy and Confidentiality is to be maintained and the name of the child, the
family, educational institution wherein s/he is enrolled and other information capable of
identifying her/him shall be kept secret.214
 Medical examination to be done to the nearest hospital for collecting samples.215
There are certain duties of a police officer such as:
211
212
Section19(3) The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
213
Rule 4(2)
214
Article 3 of the CRC, Preamble to the POCSO Act, Shankar Kisanrao Khade vs. State of Maharashtra 2013 (6) SCALE
277]
215
Section 19(5) The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
158
 Counseling to support services.
 Free legal Aid and representation.
 Benefits of victim composition scheme.
 Procedure to be followed as in arrest, filing application, and court proceeding.
 Inform the status of the investigation.
 Render the judgment after the proceeding.
 Explain the filing of the charge against the suspected offender and also information about
the bail, release or detention status.
 Schedule them to attain or not the court proceeding.
Child Statement Recorded by Police: statement of a child is recorded at his residence or any
other place of his choice. It should be recorded in the presence of child parents or any other person
of his choice. At that time police must not be present in their uniform. If it possible the statement
must be recorded in audio-video means or by a woman police officer, not below the rank of sub-
inspector.216
If needed than the help of qualify interpreter or translator 217 to be taken. A child should be protected
from the contact with the abuse or from the media. In case of disabled child assistant of a special
educator, a person has known the communication, expert in the field must be taken.
Reporting of child Sexual abuse cases218: Any person who has knowledge that the offence has
been done or likely to be committed than their duty to inform the police. Failure to do so is
punishable with imprisonment up to 6 months or fine or both 219. For easy reporting, there is a “one
calls childline on 1098”, they will directly connect to the related department like police and CWC.
For all the process there is a need for trained motivate police force is needed to established laws
and rules to handle the cases of traumatized victims, understand their situation and maintain the
balance with the working.
4.6 Role of Medial Officers in Providing Care in the Present Legal Framework:
216
217
218
219
159
As in POCSO Act when the crime is committed then there is a duty to provide medical examination
immediately. Such examination is to be done by a registered medical practitioner at a government
hospital or a hospital run by any local authority within the 24 hours from the receiving information
about the offence it is done either FIR is filed or not. In case of girl, victim examination is done by a
women doctor. Such examinations are to be done in the presence of parents or any other person who
are in the trust. If there is no one present than the head of the hospital appoint a lady who can stand
in.220
There is two types of examination one is to collect evidence and other to make a document of injury
and markings. This should be done as early as possible that no evidence is lost in motion, urine or
by any other means. The clothes of the child are to be handed over to the police without being
washed.221
Guideline for the medical examination:
 No hospital can refuse or reject to admit the victim of a child sexual abuse for examination
or treatment.
 No legal documentation is needed for imitating the treatment or examination. At most

priority is to provide immediate medical care.
 It is compulsory for doctors to report all incident of child sexual abuse in a medico-legal
case.
 All the hospitals in India either government or a private are bound to provide first aid or
immediate medical treatment to the victims of child sexual abuse or free of cost.
 Duties of a registered medical practitioner:222
1. Collect evidence after medical examination
2. Treat physical and genital injuries.
3. Assist the age of the victim.
4. Provide treatment for the sexually transmitted disease.
5. Discuss emergency situations with the child and parents.
220
221
The International Covenant on Economic Social and Cultural Rights, General Comment 14, Right to Health (11 th
August 2004), Guidelines for medico-legal care for survivors of sexual violence, World Health Organization, 2003].
222
Rule 4(2)(c) of the POCSO Rules, 2012
160
6. Resolve mental health issues.
7. Follow up to 6 months.
8. Counseling of child and parents.
9. Cooperate and assist during the proceeding of the courts.
 Sample collected from such examination for tested into the forensic laboratory should be
sent as early as possible.223
Challenges and controversies: Child Sexual Abuse is a multi-functional problem related to all
sphere of life that is legal, social, medical and psychological implications, so there is a certain
loophole in the law in this issue. That as shown below:
 Consent: If the victim refuses to take part in the medical examination but the family
member or investigating officer insist to do so than this situation POCSO have not any
clear direction.
 Medical examination: As in POCSO medical examination to be done by a female doctor

as section 27 of POCSO on the other hand CrPC says that it is compulsory for on-duty
medical examiner to examine the rape victim as per section 166 (a) of IPC this legal
provision provide conflict.
 Treatment cost: As law imposed the duty to provide free medical care. But what happens
if there is no facility or the required treatment are expensive than it is a duty of the state to
reimbursing the cost otherwise hospital may not provide proper treatment.
 Consented sexual intimacy: The POCSO Act is silent on the consenting sexual contact
between two adolescent is not a crime. Sexual encounter with a person under the age of 18
is an offence irrespective of consent, gender, marriage, age of the victim or accused but on
the other hand the age of consult of sex is fixed to the 18 years that means anyone who has
consented sex below the age of 18 can be charged with rape. It may increase the number of
cases.
 Child marriage: Under the POCSO Act child marriage is considered as an illegal activity.
Though it was prohibited under secular laws and enjoy sanctioned over it. This situation is
to be resolve as soon as possible.
223
Rule 4(2)(d) of the POCSO Rules, 2012
161
 Training: For implementing POCSO there is a proper training is needed for medical,
teachers, judiciary, advocates and law enforcing bodies. The biggest problem is too aware
of the public on such sensitize issues. Training to all important variables to provide care
and justice.224
 Role of Mental Health Professional: The role of mental health professionals is very
complicate though it requires special skills and technique for taking history, forensic
reports, and medical examination to be done and provide care and support to the victim,
provides counseling, therapy and involve in the follow-up the process and in the
rehabilitation process.
 Reporting: This is the biggest hurdle of the POCSO Act. It is true that usually many of the
cases of child sexual abuse are not reported. Knowing and reporting the cases is a very
difficult and personal decision for families and for survivors. Both of them feel ashamed,
embarrassed, frustrate, anger, guilt and all of it emotional turmoil of the act. The fear of re-
victimization and torture because of the medical examination and criminal justice system.
The basic rule for the all medical professional is to record all the reasonable suspicion of the abuse
to the legal authorities. They should explore and assist the child and mention the total review of that
POCSO recognize almost every form of sexual abuse against children as a punishable offence, a
few challenges remain there to be answered in near future. This multi-agency team approach and
access every area through psychological support to deliver proper care and comprehensive solution
within one roof for all the victims of child sexual abuse.225
4.7 Role of Institution and Schools in providing Care in the Present Legal
Framework:
To safeguard the children from harm or from abuses, there is an institution which shows their
commitment on intention to protect the child, who required any type of aid or help through them,
because any type of abuses is unacceptable. For this purpose, they make child protection policy
which contains the practice or protect children from abuses, exploitation, harm, and violence of any
type.
Child protection policy is a broad term to explain, though they contain philosophies, policies,
regulations, provisions, instructions, and conduct to provide protection from identical or un-
identical harm to children. It covers specifically the person, who is related directly with the children
224
Rule 3, of the POCSO Rules, 2012
225
162
with the care-giver process. The main motive of the scheme is providing protection from all forms
of harm and also strengthens the environment. It is a mechanism to increase or fulfill the promise of
the organization to maintain a child-friendly environment involving sensitive person associated and
enforcing or implemented the policies. From all the above explanation it is needed that all the
schools or institutions, offering educational needs of children must have child protection policy to
meet out the issue or to ensure the care and protection to each and every child.
Child sexual abuse is the most heinous crime faced by child today. Generally half of the victims
experience trauma and anxiety which result into a PTSD, depression, anger, suicide, teenage
pregnancy and school dropout. In these sequence, it also affects the life in the form of poverty,
homelessness, criminal tendency, social de-integration and moreover it loss of individual life of a
powerful adult.
Schools are one of the social pillars or institutions of a child outside the family. In which all have a
contact on a personal basis, not on through or via-via contact. It means they have direct contact with
one another. It is preferable to identify the victim as well as the abuser of the crime. Many
institutions are on the urge to have a strong mechanism for effective effects, prevention and to
reduce the risk of such a complicated issue like child sexual abuse.226
Schools are not just a place where children study or play but it grows and developed the identity of
him or spending as much time as they have at their homes. CSA occurs in school premises or area
by the people working over there, it is a problematic issue. Though schools are not prepared to
handle such conflicts, and it will give a rise a trauma to children and anger in their parents. The
misfortune is not only that CSA occurs in school by a caregiver but on the above of it schools wash
their hands of it and remain silent on such issues either blame the child and their parents for it.
Children and parents trust the teacher and caregiver unconditionally without questioning because of
their authority over there. Children are more open up to their teacher in spite to their parents. In
such condition, it is a duty of the school authority to safeguard the trust and maintain the provision
of CPP. It is essential for authority to act faster, systematically and precisely on any complaint or
issue of a child sexual abuse.
CPP of the institution:
Child protection policy is a proclamation that explains their commitment towards safeguarding their
children from violence and abuse. It clearly mentions to the staff and others about the
responsibilities, duty, and roles in providing care to children. CPP is a strong reflection of the
institutional commitment and promise to protect their children. The school has a duty to identified,
226
http://nipccd.nic.in/reports/csa17.pdf
163
how the policy will run or put into action, the policy will apply to all the personnel and persons
related to the institutions or schools and who come to direct or indirect contact with children.227
Direct contact with children:
It means the persons who are in physical contact or deal in person, as in an integral part of their
professional conduct or as in their duty toward the school. Direct contact with child or children
whether on a regular basis, special occasion, for a project only, temporary basis or any long term
contact.
Indirect contact with children:
The person who is not directly connected with the children but they contain or access the personal
details, information, and data of children like- photographs, personal details and case files.
Proactive measures should be taken into action to prevent child sexual abuse. CPP must have the
following condition which based on the motive to protect children from sexual abuse and provide
the free environment.
 A school must verify and check the background of all staff members either permanent and
contract employee. Generally abused occurred in the schools due to their previous history.
 All employees have to sign terms and conditions of child protection policy after joining the
school and ID cards allotted to them.
 Limitations need to be clarifying with the child to all staff members in their behavior, for
example, no teacher will lock the classroom from inside.
 In school premises, CCTVs must be installed and monitored.
 There must be policies and safe boundaries for photography children and their uses related
to technology internet.
 School has to arrange a session and extra activity on personal safety related to children, for
example, talking about body parts, protection from abuse and online safety.
 Teachers must detect the alarming signs of sexual abuse into the children. All staff members
and other supporting staff should be trained on prevention or protection of child sexual
abuse.
227
Rule 4(7) of the POCSO Rules, 2012
164
 Manage parents meet related to awareness program of sexual abuse faced by the children.
 There must be a counselor and counseling process must be done.
 Activities of all staff, guest faculties, and strangers are to be monitored by their immediate
controller and internal surveillance committee may be constituted.
Teacher, management and all employee meet to be made aware of the about the provision of the
POCSO act, some of his duty to report the instances of child abuse.228
The induction program is held for teachers to include specific guidelines on gender sensitization.
The school must secure and promote the harmonious environment and comprehensiveness and
organize camps and session especially for girl’s students on health and sanitization issued and self-
defense training on a regular basis. Close monitoring of students in their academic achievement and
their psychological conduct especially in the cases where a sudden decline in the work, the absence
of interest and depression should be noticed. Informal communication with the students in a way of
consultation with associates and planned investigation in hostels, classroom, and playground so that
students can open with them and feel free to discuss it. Separate rules and regulation for the
residential schools that there should be a training session for the wardens that will cover counseling
and prepared children for the unwanted challenges of adolescence’s life. Female matron is specially
designated for girl’s hostels and provides personal care and guidance to the girl children.
There should be school complain committee in each and every school or institution. It will consist
of the principal/ vice principal, one male teacher, one female teacher, one female student, one male
student, and one nonteaching staff member to set up as to serve complaints and redressed body.
Better response system and alert management machinery are required to take instant action on the
reported cases of misconduct and such issues. In each and every school there has a special
complaint and suggestion box. In which student can make written complaints of any problem of
sexual abuse and misconduct by way of drop box or any other method which has to be instantly
disposed of by the authority. It is a duty of management to provide and display the name of
authority handling the issue. Promote and make awareness of the Centralized Child Helpline
number 1098229 specially maintained for this purpose. It is a foremost duty of staff to create
awareness and support the child.
228
229
CHILDLINE India is a project of Ministry of Women and Child Development. Childline India foundation is a non-
government organization (NGO) in India that operates a telephone helpline called Childline, for children in distress. It
was India's first 24-hour; toll free, phone outreach service for children. [1] It is based in Worli, Mumbai.
165
After all such policies and their implementations are to make awareness in schools among staff and
children. There is also a duty to teach children what is good or bad touch is? To identify that, cause
they don’t know what was happened to them is really a sexual abuse. It might be understood by
them, in their later age, when they get matured enough to understand it.
So it is a necessity to explain and teaches the basic concept of good touch, bad touch, and confusing
touch. While talking with the children the word should use as “sexual abuse” cause if they victimize
of it, they can able to report it with the name only. It is also support of a victim in a case that he
knows what is done to him is not correct bylaws. It should be discussed with the children and
constantly repeating with short interval cause one-time discussion will be soon elapsed. Repetition
allows him to remain constant in mind.230
Teaching a child three different types of touches:
Good touch
Bad touch
Sexual abuse touch
Good touch: Good touches mean which feels or make happy and safe by our loved ones. It makes
us feel warm inside, loved and being a reason for a smile. Generally the touches we get make
understand that they are good enough or important for our healthy and safe life.
Bad touch: Bad touches mean those who hurts us like kicking, hitting, slapping and biting either it
is accidental or incidental by parents, friends or can be anyone.
Sexual abuse touch: sexual abuse touch can be explained “forced or tricky touch of private body
parts”. The main importance is given here is to forced and tricked. Force means when someone
makes to do or not to do something which we don’t want to do or either not in a capacity to
understand what is it. A trick mean when someone plays with you, lie to you fools to you, says that
it is game-that is actually not a game and reality. By all these, they can touch the private body part
of a child or make a touch to theirs. The term is so confusing because it is not always hurting, it may
feel good to that always arise confusion to the child.231
The word “sexual abuse” should be necessarily used, caused it to evict the illogical confusion. As
we use any other term or word like in appropriate touch or in any other name than such word
become counter product and create more confusion or irritation to the child and all of the above as
230
http://nipccd.nic.in/reports/csa17.pdf
231
http://nipccd.nic.in/reports/pocso12.pdf
166
we all know that any offender of sexual abuse will not call that they are doing sexual abuse so by
this the children knows the terminology and define them correctly. It is more powerful for them to
examine and discriminate what is wrong or what is right.232
It is a school’s duty to teach a child to trust their own feelings. Make questions about when feeling
uncomfortable or confused by someone’s actions. Explain the importance of paying attention to
their feelings in any situation or anxious behavior.
Teaching a child to say “NO!” to sexual abuse is a very important task for the institution. The child
has the power to say no to anyone who wants to sexually abuse even though he is an adult, family
member, friends or someone who is known to a child.
On the other hand, it is also necessary to explain to the child that it is important to tell someone,
who has trust, faith in a child and he can easily describe the situation or the incident happen to him
and the person who did this.
Most importantly it is a duty to explain that if sexual abuse is happening to a child, it is never a
child’s fault. Sexual abuse is always against the law and children are not responsible for them. But
one who break the laws and sexually abuse them.
Discussion with the child or talking about child sexual abuse is a tough task but the abuser will not
stop till it comes in the light. A victim of child abuse only feels better when they tell about the
incident to someone. It is also reminded to them that it is never too late to talk about sexual abuse.
Let the child knows what if child sexual abuse is happened to them they are still a good person and
they are always loved by the families and friends.
Conclusion
POCSO is considering as one unit including the small effort of all such define department. The main
motive to achieve secures the ends of justice by providing the all amnesties to the child as can be
provided. The act allows different agencies of the state to work as per their policies to work together
to meet the main motive of law making. The purpose of the act is to start the process to rebuild the
child’s life and future or not violating their rights to live the life with the dignity of an individual
entity.
Act also manages to bring out the best out from each sphere of the system. It encourages the victim
to come out and speak about it and have faith in the administrative bodies that they are here to help
them and punish the destroyer. More over it help and assistance to overcome the trauma. The unique
232
167
grievance redressal system is provided by the act as to facilitate the priority and it will play their
part in reducing the instance or cases of child sexual abuse in India.
POCSO empower to have immediate and speedy working in the trial, charge and punishment
process in conformity with the existing laws. To accelerate the effects on any uncompromising
condition, it allows the perfect remedy and possible cure. Parliament has specially designated for
such sensitive topic related to children the most fragile section of the society. Just enacting an act is
not sufficient until it has complied with the strict interpretation of the law and accountable for it.
The state must not waste their time to make the new modification to the existing laws or even
exploring the alternative rather than to execute the prevailing one in the best direction. Today’s
children are tomorrow’s future. Let us protect them. The commendable aims and objects of Late
Justice Verma must be practiced.
To boot the effects parents, teachers and others in the community have a crucial role to protect
children from sexual exploitation and abuse. It is our responsibility that Child Sexual Abuse should
be combated as early as possible. It will co-operate India shine bright and develops as a crime free
county, though children are the leaders of tomorrow and greatest human resource. Healthy,
educated, safe and happy children are the magnitude of the country’s social progress and it depends
on having access to life opportunities or wellbeing of children.
4.8 Role of NGO
Independent organization, institution, foundation, independent expert or nongovernment

organizations are included in Civil Society. An organization has a distinctive role to effectively
impose the POCSO Act, 2012. Not only arise in public awareness on child rights showing child-
adult relationships, cultural violence and provide care and protection to the children against abuse or
violence with the help of their member or support person through rehabilitation process or
counseling of an abused child.
NGO is an essential part of a developing society for improving communities and promoting
education, social change citizen participation in social life.NGO comprises of different categories
that function not for any financial gains, or not belonging to any government.NGO provision and
the area of activity were explained in the International Classification of Non-Profit Organization
(ICNPO). NGOs are fundamental and structural need of a democratic society.
NGO are increasing day by day and they furnished social harmony. Proper participation of NGO
political support, government services as an outcome of conformity, validity, and credibility of their
operations.
168
Initially, it should make a mechanism to check the quality and its competency such as in the form of
complete the registration, that is a legal system, self-regulation, working procedure, code of
conduct, Certification, permission, participation in their networks, audit, and monitor.
The main mission of the NGO in this stream is to provide care and protection to the child and
established their rights by providing health, services, education, and justice. Services incorporate
social, psychological, medical services and it is integrated with care nursing financial and
information services and training there too.
POCSO is a combination of single entity and social group to work for political commitment to gain
from design action plan policy, system support and their social acceptance, foreign individual goal
or programs. To make the involvement of child with the law and their procedure policy
Features of NGO’s for protection of child: to protect the children from sexual abuse there certain
rules and regulation as followed.
 Increase public awareness of child rights.
 Prevent and protect a sexually abused child.
 Making a report to local police/SJPU
 As “person of trust and confidence”, they have to be present before the police, magistrate,
medical examination and court proceeding at the time of recording of statement.
 They assist the child during pre-trial and trial proceeding and communicate the other court
proceeding.
 File application for compensation.
 Provide support to the institution to develop or monitor government or child protection

policy.
 Start training programs for the staff, doctor, lawyer, children, youth etc.
 Control and ensured media on handling such sensitive issues.
 Awareness through academics and publication.
 Collaboration with other NGO, business groups, private organizations, media etc.
 Accessing the Legal Aid cell and get legal advice related to the legal rights of a child.
169
The POCSO Act, 2012 and POCSO rules, 2012 anticipate the association of NGO’s as a support
person for the child as well as under various other provisions. These are shown below,
 Any person, including the member of an NGO, may make a report to police. 233 NGO works
to identify child abuse and the child is more comfortable with them. An NGO that has
knowledge of sexual abuse of a child is also bound by the principle of mandatory
reporting.234
 An NGO worker who indulged in the case can be requested to be present at the time of
recording a statement before the police or magistrate 235, medical examination236, and special
court proceeding.237
 To assist CWC as a support person in a trial or pre-trial procedure 238. Also the parents and
guardians or any other person, the child can trust can approach to NGO to act as a support
person.239
 Support person has a right to inform the development, arrest of an accused application filed
at other court proceedings.240
 NGO help the child to file an application for compensation that is either interim or final
from the special court or legal service authority.241
 It is a duty of police and other officials to inform that there is provision to take the services
of a support person for counseling, make trust or have confidence in it.242
 It is a duty of police and SJPU to inform the special court about the appointment and
termination of the person. 243
 Service of the support person may be terminated by the CWC on the request of the party and
their representative.244
233
234
235
236
237
Section 33(4) and section 37 The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
238
Rule4(7) of the POCSO Rules, 2012
239
Proviso to Rule 4 (7) of the POCSO Rules, 2012
240
241
Rule 7 of POCSO Rules, 2012
242
Rule 4 (2)(e) of the POCSO Rules, 2012
243
Rule 4(9)(10) of the POCSO Rules, 2012
244
170
 Series of the person listed by DCPU and CWC to manage the appointment of a person/NGO
as a support person, who aid, services, assist and comfort for the child. This comprises the
following people engaged in an area of child protection, NGO or any other organization
moving in the spare of Child Rights, a person employed by DCPU.
Training and payment to support person: The support person must have all the necessary
qualification for assisting children of different age and areas. Better communication and counseling
skills. To prevent the risk of re-victimization and support them and they have legal knowledge
regarding the procedure.
The person employed by DCPU and other officers is entitled to take in their monthly salaries at the
prior rates. The experts and the NGO’s are paid through the fund maintained by the state
government under section 61 of the JJ Act, 2015.
Child Protection Plan: on receiving a report or accessing it with the consent of the child and their
parties too. Support person has formulated a child protection plan connected with the child.CPP is a
working tool that should be followed in near proceeding to safeguard the interest to the child and
welfare for their family. 245
The basic ingredients of CPP are:
 Recognize the current risk to the child
 Make strategies to protect the child and reduce the risk in proceedings.
 Provide and develop a protective area to the child and strengthened it.
 Consult and explain the content and enforceability of the plan.
 Identification and collect all the necessary resources to make out the plan.
 Counseling and rehabilitation are the basic structure of such a plan.
Guideline for NGO/ Any other person appointed by CWC:
 The main responsibility of NGO or person appointed by CWC is to provide, maintain child
interest in the judicial system.
245
Rule 4(7) of the POCSO rules 2012
171
 NGO worker is duty bound to report any case that they have knowledge of it, though the
family or the victim don’t want to file a case. In such cases, it is a mandatory duty to counsel
them and report the case.
 NGO and CWC member provide their services only in a professional context, with valid
consent. Appointment made with the involvement of the child.
 NGO and social workers use clear and understandable language to notify the child, the
reason for their services, hazard related to their services, explain substitute. The child has the
freedom to ask the question.
 If the child is not in the capacity to understand the language, or not a sound mind then they
can provide a detailed explanation and arrange translator and interpreter.
 NGO and member of CWC arrange or represent themselves in a capacity within the
circumference of their education, training, consultation, certification, and other relevance.
 NGO’s and CWC members must avoid conflict of interest, impartial judgment, and
professional discrimination.
 NGO and member of CWC should not make any unethical, unlawful favors due to their
position.
 NGO and member should maintain Child rights to privacy and do not promote the
information unless it is needed in child interest.
 NGO and social worker are duty bound not to identify in front of media unless granted by
the special court.
 In any other circumstances the child has not to be engaged in sexual activity, harassment,
sexual advances or sexual favors is demanded by any member of NGO/CWC.
 The social worker or NGO cannot use any defamatory language either in written or
communication form about the child.
 In this process services of members are disturbed due to illness, disability, death, then CWC
appoint another suited person for this.
Recommendation from NGO for further action by CWC: where the NGO or any other person
found fit by the CWC conclude after the interaction with the child and other affected persons and
172
feels that child need to be removed from the physical custody from parents/ guardian/ care-giver
than make a recommendation to CWC for this affect.
After receiving the report of the NGO or any other person found fit by CWC, then only CWC
determine the child must remove from the custody of parents/ guardian/ caregiver and placed in a
child home or shelter home. To determine this CWC must take into account the preferences and
opinion of the child on this matter along with all relevant factors having the best interest of the child
in this consideration.246
Conclusion: NGO plays an essential role in recognizing child sexual abuse concern. There are
numbers of NGOs working with children and they are also aware of particular issues and
performance of each child. NGO workers have in the capacity to lookout these children who are at
the risk of sexual abuse as well as signs of sexual abuse in the children before they may disclose it.
In this way, an NGO worker can provide services in a specific manner to detect the sexual abuse
and imitate the remedial measures including all judicial process in regards to sexual abuse. NGO is
the foremost channel to promote an awareness program and supervise the government policies and
action plan. NGO s give their contribution as the resemblance of an objective of POCSO Act 2012
by providing technical support to the institution children, or in developing child protection policy,
recruitment, monitor, complaint structure, disciplinary proceeding, and police reporting within their
own organizational or institutional settings and train their staff for this regarding. NGO can also
train members of CWC, lawyers, doctors and other professionals who are dealing with the children
under the POCSO Act, 2012. Inclusive of all these NGOs can organize educational and training
program for the children and youth. NGO can make consultation with children and youth to
perceive their views and give an outlook on the issue of child sexual abuse and furnished
opportunity and ways to put guidance forward as well as a circumstance to get involved in the
execution process. More over NGO can observe media coverage and protect sensitive issues and
handle carefully. NGO can elaborate and spread position papers, other academic awareness and
distribute related material. They can build an association with other NGO, business groups, private
organizations and the local, national and regional media networks, submit articles involves the press
and relevant events and lobby with media to raise awareness with the general public. NGO plays an
indispensable part in implementation of the provision of the POCSO Act, 2012 and in general in
tackling the issues of child sexual abuse.
246
Rule 4 (5) of POCSO rules, 2012
173
There are NGO working with such brutal offence to secure the ends of justice as to promote the sex
education and awareness about it and find the cases related to it to meet out the proper cause of
action for it.
In Bihar shelter home case a brutal case or a national calamity it can be said as it was so
shameful for us to have it but it happen and we know about it through such dedicated and person
and agency were determined to make such effort to disclose the guilty of their cages.
In that case, the most sordid, reprehensible and nail-biting crime committed for years on 44 hapless
and helpless young girls (7-18 years of age) have become breaking news. No one has reported that
dozen of them were mentally ill while most others were traumatized to core. Words fail to describe
this inhuman crime. The girls who lived in the government children's home (Balika grih) on Sahu
Road in Muzaffarpur in Bihar were drugged, raped and physically assaulted on a daily basis. Their
private parts were burnt with cigarette butts.
It’s perhaps important to say here that there can be no consensual sex with minors.
I will return to this sad commentary on the state of the nation a bit later.
This case is a coming out with the help of the positives first-to salute three individuals along with
their core team. First salute goes to tenacity of fearless, selfless “Team Koshish” (field-action
programme of Tata Institute of Social Sciences) that was ably led from the front by its Director
Young-Turk, Mohammad Tarique (an Ashoka Fellow) for truthfully conducting “Social Audit” of
110 institutions from 9 divisions and 35 districts of Bihar in extremely tight time frame. They have
best practice standards to deal with the situation.
For the uninitiated, Koshish team is an exemplary outfit of youth committed to cause, rooted in
excellence and passion. The manner in which it works in extremely strenuous and hostile milieu to
change the life of marginalized destitute, homeless and beggars. Team Koshish is best recognized
for its exemplary contribution to the task of decriminalization of destitution, including single-
handed war to abolish draconian Bombay Beggary Act, 1960.
Team Koshish an unprecedented “Social Audit” of all government and non-government homes in
the state They get bigger credit for “Biting The Bullet” and “Walking the Talk” with unprecedented
courage and accepting the unadulterated truth in the yet to be published “Report”. Make no mistake,
if one honest audit by the bunch of committed youth icons (spirited girls and boys of Koshish are in
the twenties and early thirties) combined equally with speedy follow up action by organs of state
made skeletons stumble out, I shudder at the mere thought as to what 100% national audit of all
homes will result into. There are limited institutions which can do what Koshish has done.
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Koshish also supports in the rehabilitation process of such traumatized victim as they faced such
crime and then lengthiest procedure and also it will always poke in such duration or recall in the
mind of the victim. They have physical, mental injury, lost of self-confidence, PTMD, disorder,
selfness and many more. To rehabilitation and for the protection from that situation NGO is
working and Koshish is also one of them to help those who need it the most.
An institution especially working for this is mention here.
The best institution capable of providing long term psycho-social rehabilitation and eventual
societal integration is Chennai based “The Banyan” pioneered by two brave-heart ladies Dr.
Vandana Gopikumar (also a Professor in TISS) and Vaishnavi Jayakumar.
The Banyan over the past 25 years has changed the life of million plus destitute homeless mentally
ill women (50% plus homeless mentally ill women are the victim of sexual abuse often repeatedly).
“The Banyan” and “Koshish” organization are correlated in their objects and ready accompany to
work together as to achieve their goals.247
There are some cases listed here which is dealt with by the CWC Banswara and Pratapgarh
related to the POCSO act. Such cases are reported to police and thereafter handed over to
CWC for speedy disposal of the cases. CWC deal with the problems and find the proper
justification of them relating to a child like child labor, child abuse, juvenile issue, a child in
the conflict in law, sexual abuse and etc.
 In this case, the victim was abducted by the accused from a marriage function who is16
years of the age at the time of the commission of the offence. Take her to another state
without her consent and commit penetrative sexual assault for about 2 months. One day she
gets a chance to escape from him, reach her native place and explain the whole story about it
to the family member. The first FIR is registered through police only for abduction or
kidnapping as per section 363,366 of IPC. The matter is forwarded to CWC for the speedy
relief when the evidence of the victim is recorded in front of them than only the committee
come to know that the provision of IPC under section 376 along with the special provision
under section 3,4 of the POCSO is too added for the real proceeding.
247
https://www.news18.com/news/opinion/opinion-the-bihar-shelter-home-case-where-29-girls-were-raped-should-
be-treated-like-national-calamity-1824525.html
175
FINDINGS: After such proceeding, the accused is under the police custody and the victim
sends to the “Balika Ghrah” the shelter home situated at Udaipur, especially for girls to
provide protection, education, and rehabilitations. The matter is still in consideration.248
 In the next case, the victim is 13 years of the age is roaming around with her cousin in the
market. With the malice intention, her cousin and his two friends forcefully take her away on
motorcycle. The main accused commit the crime of sexual abuse with the victim that night
at his relatives place. The cousin of the victim, supports his friend in the whole incident as
she must take care and watch outside the place of the incident that no one can enter and get
to know about anything happened there. The next morning all of them go to the accused
house where the wife of accused opposed about the incident and due to the reaction of his
wife they (accused, the victim, cousin of victim) again by motorcycle drops the victim to her
place. In middle of this journey, the accused again sexually abused the victim in the forest.
After this situation victim manage to ran away from them and come in contact with the
family with the help of the locals. There is threat from the sides of the accused family that if
police complaint is made then there is harm to the victim family.
After this situation, a case is register by the police officer which is come through the postage
under section 363, 366, 376 of the IPC and also section 3 and 4 of the POCSO Act. All the
evidence is collected by the investigation authorized by the way of medical examination of
the victim and the accused and sends all the evidence for further investigation to the forensic
department for the final conclusion. Victim statements are recorded under section 164 of
Crpc in front of the judicial magistrate. CWC after the inquiry they come to know that all the
parties indulge in the crime are below the age of 18 years than they are registered as a child
in conflict with laws. The main accused is charged with section 363, 366,376/34 of the IPC
and with the special provision under section 3, 4 of the POCSO Act. The cousin of the
victim who help the accused in committing a crime is also a child in the conflict of law and
the cases is registered against her is as under section 363, 366/ 34 of the IPC and under the
special provision of section 16, 17 of the POCSO Act.
FINDINGS: Both the accused and the cousin of the victim are in the custody of the CWC
with the order there too till they attain the age of majority. That is 18 years of age.249
 In this case, a victim is kidnapped from the place near her home. First, the child is trafficked
for the purpose of sexual abuse with the help of 6 people and drops her in an accused house
placed in another state. Where the accused commit the crime of sexual abuse for the
248
85/15/6/18 of CWC, Case received from CWC Banswara
249
65/ 23/05/2018 of CWC , Case received from CWC Banswara
176
purpose of having a child. By these incidents, the victim becomes pregnant. In between this
duration one day the victim get a chance to escape from their custody and approach to the
near police station. After hearing the situation police take her into custody than they handed
over her to the nearest “Mahila Ashram” than the report of this is to be given to her family
and send her to with them at that time the victim is 6 months pregnant.
After 2-3 months of the incident a media report is published in a newspaper that a minor girl
gives birth to a baby girl in a government medical hospital. Then the matter comes in the
knowledge of the CWC and the member of the committee take the statement and request
about the earlier documentation and reports of the case.
After this a case is registered under section 363,366, 376 of IPC and after having medical
examination of the victim as to relate to age is come to know that victim is only 14 years of
age at the time of the offence than the special provision of POCSO act also applies there as
section 3 and 4 of the POCSO applied.
Beyond this CWC take the responsibility of the baby girl who is given by the victim to the
government for the care and protection of the baby. Because the victim is unable to take the
responsibility of the new born due to the age, immaturity, social pressure, poverty, or the
baby girl is an outcome of such a brutal incident. A written request is made by her that she
will voluntarily give her baby to the government for the betterment of the newborn. Willing
to go with the family and study further after handed over to the baby.
But 6 months later the victim girl again files a complaint against their family that they are
not supportive and they don’t want to complete her education. Victim family wanted her to
marry a person who is 40 years of age and she opposed that because it is the same repetition
of the trauma which she had earlier faced. To overcome this condition she applies for the
protection from the family itself and makes prayer from the institution for that to provide the
secure and protected shelter to pursue the education of her own.
FINDINGS: On that point, the member of CWC decided the child is in need of special care
and must provide a shelter home because there is always threatening to her and she has a
right to live with dignity, complete her education and liable to stay till she attains the age of
majority.250
 In this case, the victim is below the age of 18 years and the complaint was filed by the
parents of the victim as related to the abduction and the provision of Pocso Act. The accused
250
142/7/12/2016 of CWC, case received from CWC Banswara
177
is marrying the victim and have sexual intercourse with her. Thereafter charged under the
POCSO act and the victim are pregnant out of this crime. The victim is not willing to go
with parents and wanted to go with the accused only. But the accused is charged for the
offences conducted a crime of abduction of a minor girl and under the Pocso as penetrative
sexual assault.
Evidence was shown by both the parties as related to age a conflict arose due to that parents
show the school certificate that clearly shows the age of victims 17 years of the age and on
the other hand other parties show medical examination of the girl explain the age of the
victim is about 18 to 20 years of age. The result of medical examination is not conclusive in
the eye of law because it may vary and the gap of 2 years always has a possibility to resist in
there. The key factor of such variation is the environment, living style, food habits, and
atmosphere. So the final conclusion is of age at the time of the offence of the victim is 17
years of the age. It will conclude that the girl is minor.
After that as per the provision of the IPC under Section 361, the minor girl is abducted from
her legal guardian without the consent of the guardian and it should be retained in the
custody of the legal guardian.
The victim is not willing to go with the parents because there is a threat to her life and her
unborn child that is of 3 months pregnancy. Also it is not possible to go with the accused
because he is charged with the offence of abduction of minor girl and have penetrative
sexual assault on getting and became pregnant of it, so he is criminal as per law and on the
other hand as she was minor and her parents are alive and also illegal as per the laws.
FINDINGS: Than CWC concluded in this matter as that the victim is to be sent to the
Balika Gharh till she attains the majority and then after she is free to go anywhere she
wanted to.251
 In this case the victim is going out for washroom at midnight near her house than the
accused and his friend caught her, abducted or threaten her with knife or terrified her if she
shouts than he will murder her and one of them conducted penetrative sexual assault with
her, another one is staying there to check that no one will get to know about the incident has
taken place. After that drop her in the house or the neighborhood. The neighbor saw her and
inform about this to her parents or the family. Due to this incident, she got paralyzed and has
the severe injury on her body.
251
119/2017 CWC, case received from CWC Pratapgarh
178
The complaint was filed by the victim and the parent of the victim against the accused.
Accused were not known to her previously but she identifies them in that process. The
investigation was done by the police and evidence was collected from the place of incident
and the knife is found from the accused itself. Both the accused were below the age of the 18
years of age as per the record is shown in the case they are the termed as a child in conflict
with the law. The charges are made against one of them is 363, 366 of IPC and 3(a) / 4, 5(g)/
6 of the POCSO Act and the second one 363, 366/34 of the IPC and 5(g)/6 of the POCSO
Act.
FINDINGS: Both children are in conflict with the laws that they will be sent to the
observation home till they attain to majority and proceeding is on going for the same.252
 In this case, parents file a report of the kidnapping of her minor daughter age of 13 years that
she is caught by the accused while she is traveling. Accused came on a motorcycle and fold
her hand take her to another city and remain there for 5 days and conducted a penetrative
sexual assault on her. Then the matter is registered under Section 342, 363, 366 of the IPC
and Section 7, 8, 9 of the POCSO Act.
After that during the investigation process, it was found that the victim is at the time of
offence is above the 18 years of age as per the school record. Then only the provision of
POCSO Act is removed from the charge.
Also found that the accused is below the age of 18 years of age and said to be a child in the
conflict in law. Then matter is charged as per the 342, 363, 366, and 376 of the IPC.
FINDINGS: As per the record that the child is of 14 years of age that he is in the conflict in
law than he will be sent to the observation home till he gets the majority.253
These are the cases register at the local authority. In all such cases victim are files FIR and the
judiciary play their role to make out best in it with the help of the stakeholder or the person
specified for that such as member of the CWC, and the staff, officer of the ICPS , Police department
of the or other state were the accused or victim found, investigation agency, medical officer of the
state.
These cases are found out with the help of the officers of the Social welfare department of Banswara
and from the Social welfare department of Pratapgarh. The name, place, and identity of the victim
or accused are not real here; it is kept confidential; and translated by me in the true knowledge of
252
253
179
the language. Such material and information collected by me from this department are surely be
disposed of by me after my submission.
Conclusion
Child sexual abuse is a harsh reality of our society which cannot be denied by anyone. It affects our
lives on a regular basis but generally, it goes neglected and unregistered on account of the innocence
of the victim and the blame attached to it, neutrality and inhumanity in the investigation process and
the deficiency of law enforcement agency. Just making good legislation is not enough for the
society but proper implementation of it with the help of all the factors related or indulges in it.
Proper implementation and knowledge and reporting of the cases are the key factors for the good
governance of the laws of the land. Good governance can be reached when all the organs of the
government play their role in the perfect way to reach the predefined goal of awareness and
implementation. The organs are like commission who make laws, department who execute the laws,
police who get to know the wrong has been done and the investigate on such report and collect
evidence on such information, doctors are there to support or testify the incident through their tested
and tried method like medical examination and prepare a report on such diagnosis for the reference
to judiciary though they can consider into, judiciary who decide what is correct or not, if not then to
rectify by way of punishment. This kind of implementation is needed to meet out the justice and
have fled free from such a heinous situation.
All this is the work done by the multilevel agency but the core root to decrease this social issue is
embedded in the hands of society it is of duty of every individual to give their children such social
value to respect of women and support her in every possible condition than such social evil is
rampant from the society at once. This will be done by the NGO’s, school, family, and institution.
Because children are the great asset of the nation and it can’t be ignored. They are the future
generation of our nation a great human resource. These are the pillar of the national, social growth,
prosperity lies in the wellbeing of the countries children and if children are healthy, educated, happy
and safe though they achieve and have access to all opportunities in their life’s.
It is our duty that child sexual abuse should be clean swipe as early as possible through India will
enshrine and enlighten and developed as crime free state and children are the leader of tomorrow.
180
Chapter 5
Legal Aspect of the Act
India has the largest population in the world in regard to the children almost 41 per cent of
the total populations are under the eighteen years of age. 254 Additional to that health and security of
the country’s children is an essential element for the progress and development of the nation. One of
the major problems which affect the future generation is the evil of child sexual abuse. As per the
data are shown by the National Crime Records Bureau, it reveals that there is a continuing increase
in sexual offences against children. Half of the children reported that they have faced some kind of
sexual abuse and suffer a lot because there are no proper laws that connate the specific offences as a
crime and provide punishment or remedies thereto, it was revealed in the study done by the Ministry
of Women and Child Development in 2007255. As rape is considered a heinous crime under
legislatures like IPC, but this prevailing law fails to recognise and penalize the other sexual forms
and offences like sexual harassment, stalking, sexual abuse, child pornography and child trafficking.
If any of such offence is committed than they have no specific provision for that than they have to
only rely on the provision such as a mention in IPC is like “outraging the modesty of a woman.”256
This stage is very disturbing, create annoyance, anxiously and intensively depressing about
the position related to the security measures of children of society either school going or the
newborn situation are the same for everyone because when the care provider and giver became the
perpetrators of the crimes. As citizens of the country all should know the provision for the
protection of children from sexual offences prevailing in the different acts for the betterment of the
society.
To channelize this situation The Ministry of Women and Child Development, identify the
basic issue of child sexual abuse which is duty bound to mention in a very simple or forceful way to
remove complications and have a strict implementation of them. Therefore the result of it is has
been seen in the name of the POCSO act which is specifically formulated to address such evil
crimes of the society such as sexual abuse and sexual exploitation of the children. Protection of
254
C2 and C14 Table, India, Census of India 2001: Census of India: Age Structure and Marital Status, can be seen at
online http://censusindia.gov.in/Census_And_You/age_structure_and_marital_status.aspx
255
POCSO Act – Providing Child-Friendly Judicial Process(http://pib.nic.in/newsite/mbErel.aspx?relid=86150)
256
Section 354 of The Indian Penal Code
181
Children from Sexual Offences Act, 2012 received the President’s assent on 19 th June 2012 and was
notified in the Gazette of India on 20th June, 2012. The enacted act shortly comes into existence
along with the rules framed accordingly.
Provision and Feature of POCSO Act/Rules
The Protection of Children from Sexual Offences (POCSO) Act 2012 is applied to the whole
of India. The POCSO Act defines the criteria related to a child 257 like any person who is below the
age of 18 years is provided protection from any type of sexual abuse. Basically, the act is intended
to guard the “best interest of the child” during the whole stages of the proceedings. Foremost is to
have harmony with the child and every stakeholder must support the victim and provide as much
care and support as possible.
In this act, the terms are defined as much as it can be though they can include every possible
content into this specific term logy to define what the actual crime consist of. The offences are
explained in the name of Penetrative and aggravated penetrative sexual assault, sexual and
aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are
consists the major five offences that are considered against the children roofed under the Act. 258 Act
also conceives the provision related to even of attempt and abetment 259 of committing an offence as
defined in the Act. It also validates the intention to commit an offence or even though it is
unsuccessful it is under an obligation to be penalized. The punishment may differ for each and every
offence as relate to their gravity of the offences such as that the punishment for the attempt to
commit is up to the half of the punishment has prescribed for the commission of the same offence260.
The act also advocates that any person, who has awareness or any fear that something
offensive is likely to be committed or has any information that has been committed, has a binding
obligation to report about the matter. That person may be media personnel, the staff of hotel/ lodges,
hospitals, clubs, studios, or photographic facilities if they fail to give any information about it than
there is the provision of punishment related there too as imprisonment up to six months or fine or
both261. In the cases of child abuse, it is now mandatory for Police to register an FIR. A child
statement can be recorded at any place either at the place where he resides or any place where he
feels comfortable and the statement should be preferably recorded by the female police officer who
is not below the rank of sub-inspector.262
257
Section 2(d) The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
258
259
260
261
262
182
Another significant provision as per the act relate to the Child’s medical examination can be
done before registering the FIR it totally depends on the discretion of the investigation officer. The
prescribed medical examination is done in a government hospital or in any private ones within 24
hours after receiving any information about any such incidents. It is done only with the consent of
the child, if not in capacity than parents or any person whom the child has trust and in the presence
of such a person.263
Child Welfare Committees (CWC) plays a significant part in the POCSO Act. The cases
registered under this act as on the basis of the FIR are needed to be reported to the CWC within 24
hours of receiving the complaint264.The CWC should take into account the case make an opinion
about that the child whether he reside remain in the institution or with the family within the three
days as to conclude the case. The CWC has the power to nominate with the consent of the
child/parent/guardian/other persons, whom the child trusts, as a support person to assist the child
during the investigation and trial process of the case.265
The government makes rules about it and provided the State Commissions for Protection of
Child Rights (SCPCRs) have been entrusted with the responsibility of monitoring the
implementation of the provisions of the POCSO Act, 2012, for conducting the inquiries and to
report the activities in their Annual Reports undertaken under the POCSO Act, 2012. 266 The
Commissions has the authority to call any report about any specific case of child sexual abuse
falling within the jurisdiction of a CWC in their respective state. The commission may also guide
about interim relief or make a recommendation to the state government for an effective cure to the
matter.
The act defines certain guideline or rule to follow as to award compensation by the special
courts designated especially for this purpose such as:
 Category of abuse, gravity or deepness of offence and the asperity of the physical or
mental loss or injury suffered by the child;
 The expenses are or likely to be obtained on medical facility for physical and mental
health issue;
 Harm to education in the consequence of the offence which includes absence from
school the reason behind it maybe mental traumas, injuries to the body, medical care
263
264
Rule 4(3) The Protection of Children from Sexual Offences Rules, 2012
265
Rule 4(4) The Protection of Children from Sexual Offences Rules, 2012
266
As per NCPCR,SCPCR guidelines
183
and treatment, investigation, trial of the offence, or for any other reason related
thereto;
 Loss of job as a outcome of the offence it comprises absence from the working place
due to the mental pressure, bodily injuries, medical facilities, investigation, judicial
process or for any other reason;
 If the victim is related to the offender in any relationship;
 Even if the abuse was a confined case or it take place over a period of time;
 In the case when the child became pregnant out of this incident;
 If the child gets a contracted disease such as HIV, STD as a result of an offence;
 Any disability is experienced by the child as a consequence of the offence;
 Economic condition of the child is to be checked as to decide the rehabilitation
process;
 Any other factor if the special court deems fit to be relevant than it up to them to take
into consideration.
There are some child-friendly proviso is contemplating under the Act to provide as much
amenities to the child as to get out of such brutal experience are as follow:-
 A child must be interrogated in a child-friendly environment and once only.

 No child is to detain in the police station for the night.
 The statement of the child is to be as same it was given by them.
 Regular break for the child is to be given during the trial process.
 A child may not called frequently for testify.
The burden of proof in such kind of offences is up to the accused only in as taking into
consideration the severity, sensitivity of the case and innocence and the modesty of the
children.267 Punishments are provided for false complaint or any wrong information with the
intention of causing harm to prevent the abuse of laws.
An obligation is impaired on the media personal as they are not in capacity to disclose the
identity of the child without the assent of the special court. There are punishments for
breaching this provision by the media is imprisonment of six month to one year.268
The trial must be conducted as soon as possible. The evidence of the child is to be recorded
within 3o days and also in the case of the speedy trial the trial should be completed within
one year269.
267
268
269
184
The act derogates the duty on the state to make awareness of the act into the general public
about the provision of the act by the way of media that is print or online, television, radio
and organize awareness programs and campaign at the regular basis.270
Procedure for reporting of cases, recording of statement, medical examination, etc
The present act specifies sexual offences in certain categories such are penetrative sexual assault,
aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment,
and using a child for pornographic purposes, to provide protection to children against sexual abuses.
Abetment of or an attempt of the same offences is also punishable under the Act. These offences are
gender neutral as relating to the perpetrator or as to victim also. The act needs the state government
to delegate the Session Court in each district as a Special court to try the cases of such sexual
offences as under the act. In spite of that, any special children court is notified in each district or as
per the Commissions for Protection of Child Rights Act, 2005, have same power to try the offences
of the present POCSO act. Though if not done, then it is the prime duty of the government to make
and provide the special arrangement for the dissolution of the matter in the specific courts with all
the necessary comforts related thereto.271 The procedure for reporting and recording the complaints
and trial of sexual offences are mention in the POCSO Act, Rules, 2012 that are explained here:
 Reporting of the cases: This feature includes the process of registration of the cases as who
can report, to whom the report is made, the language of the report and if not done than the
provision there too.
 Who can report: Anyone means any person including the child also, who knows
whereabouts of any incidents or have the sense something awful is going to happen, is likely
to commit or having knowledge that an offence is made out as per the POCSO Act than it is
an impulsive obligation to report the matter to the appropriate authority. There is an express
provision in which the duty is imposed clearly upon the media person, hotel staff, lodges,
hospitals, clubs, studio or photographic facilities providers to report the case if they get any
acquaintances with any objects or material in connection with the sexual exploitation of
children.272
Failing with the same is or not in the capacity to complete the provision of the POCSO Act
will raise the process of punishment for them with the imprisonment of up to six months or
fine or both. However, this provision of the penalty is not applicable to a child.
270
271
272
185
 Whom should the case be reported to do: The case must be filled to the Special Juvenile
Police Unit (SJPU) or the local police. These authorities have to record the report in writing,
mention an entry number on it, read a written complaint about the informant as for the
verification of the report and make an entry in the FIR book. The complaint is registered as
an FIR and a copy of it is to be given to an informant at free of cost.273
 The Language of the report: The reported case must be recorded in the language as it was
spoken by the child in a simple language that the child is able to understand what is being
recorded. If in any case language of recorded statement is not understood by the child than
there is clear provision to have an interpreter or a qualified translator as per the provision of
the act.274
 Recording of the statement of the child: Statement of a child is recorded as per the
condition mention in the act such are explained here:
 Where the child statement must be recorded?
A child’s statement always is recorded at the residence of the victim or the place where they
generally use as for the residence or any place of their choice. In any condition, no child can
be detained in the police station at night. The officers always make an arrangement that the
statement can be recorded by the audio-visual forms.275
 By whom should the statement be recorded?

As far as possible, the statement is to be recorded by the woman police official, not below
the rank of the sub-inspector. She should not be in the uniform at the time of recording the
statement. The assistance of the qualified translator or interpreter can be taken while
recording the statement. These statements must be in the presence of the parents or the
person on the child has trust or confidence.276
 What steps are taken by the police to protect the child?

While examining the child the police officer investing the case it has to check that the child
cannot come in the contact of the accused at any point. The identity of the child is not to be
disclosed unless a direction or order is given by the special court.277
273
274
275
276
277
186
 What steps are to be taken to record the statement of the child with disabilities?
The police officer is duty bound to take the assistance of qualified special educator or person
familiar with the manner of communication of the child or an expert in that area, support
person, at the time of recording the statement of a child with such mental or physical
disability.278
 Recording of Statement of Child by the Magistrate

 How must the statement be recorded?
The statements are recorded by the Judicial Magistrate as under section 164 of the Code of
Criminal Procedure (Cr.PC) as it was spoken by the child in the same language or in that
manner only this process is termed as “verbatim”. The statement must be recorded in the
presence of the parents, or the person on whom the child has trust or confidence. The
assistance or support of the special educator or translator or interpreter is to be taken while
recording the statements. The Magistrate must provide that the statement is to be recorded in
the audio-visual (or audio) forms. The Magistrate must also provide the child and their
parents or representative, a copy of the police report in the matter.279
 What measures must be taken to record the statement of a child with disabilities?
The Magistrate must seek support or aid of a qualified special educator or a person who is
familiar with such communications forms of the child or an expert in that area while dealing
and recording the statement of children who are mentally or physically disabled.280
 Medical Examination of the Child
There is an obligation on the medical jurist to complete the medical examination of a victim
either before filling the FIR or complaint is registered as a case. The examination is to be
conducted by the register medical practitioner in a government hospital or any local hospital
run by the local authority within 24 hours from the time of receiving information about the
commission of an offence. If the preferred practitioner is not available, then the examination
is done by any other registered medical practitioner, with the consent of the child, or by any
person who is competent to give consent on behalf of a child. If the victim is a girl child then
it must be done by the female medical practitioner. Such examination must be in the
presence of the parents, or any other person in whom the child has trust or confidence
thereto. If a parent or such other person cannot be present, for any reason, the medical
278
279
280
187
examination must be conducted in the presence of a woman nominated by the head of the
medical institution.281
"Forensic Medical Care for Victim of Sexual Assault – DHR Guidelines", brought out by the
Department of Health Research (DHR), Family Welfare, Government of India in 2013 has
suggested several guidelines aiming at forensic medical care for survivors of sexual assault. The
guidelines suggest the following:282
 Whenever cases of sexual assault come on her own to the hospital or are brought by the
police, it has to be registered as MLC (Medical-Legal Care).
 The information obtained for medical examination is confidential and therefore, every effort
must be made to protect the privacy, security, and safety of the patient.
 The victim must be given appropriate treatment and counseling as per their need. The
victim cannot be refused treatment and/or examination for want of police papers.
 Vulnerability relating to sexual attacks is always related to the health issue of the victim.
Exclusive care and support are to be provided in the matter related to physical injuries,
pregnancy, HIV, and hepatitis, as well as in the secondary matters such as counseling,
rehabilitation, social support, follow-up, examination process and appropriate criterion.
 The examination should be conducted in privacy but the patient should be allowed to choose
to have a support person (e.g. family member or counselor) to be present there. If the patient
does not request the presence of a support person, the patient should be informed that she
may have a right to have a female nurse or another suitable chairperson present during the
examination.
 Each hospital can use the already printed version of the Forensic Medical Form or can
generate the same form through software. The form may include general information such as
name of the Department/Hospital/Unit including place where the examination was
conducted; general information and consent; history/details of alleged sexual assault;
medical, obstetrical and surgical history; general physical examination; injury examination:
injuries on body (if any); local examination of genitals, anus and oral cavity; specific
examinations (these examinations shall only be done whenever facilities exist and if
indicated); sample collection for hospital/clinical laboratory; collection of forensic
evidence/material/samples; and provisional opinion.
281
282
188
In the past, survivor examination was only done after receiving police requisition. Police
commandeering or application is not mandatory any more for the survivor of rape cases to have
medical support or care. The doctor should examine such cases if the survivor reports to the hospital
first without filling FIR. He should then inform the police accordingly.
As per the guidelines contained in the "Guidelines & Protocol, Medical-legal Care for
Survivors/Victims of Sexual Violence", Ministry of Health & Family Welfare, Government of
India, 2014, has suggested in order forging an interface of the health system with police:
 A standard operating procedure outlining the interface between the police and health
systems is critical. Whenever a survivor reports to the police, the police must take her/ him
to the nearest health facility for medical examination, treatment, and care. Delays related to
the medical examination and treatment can jeopardize the health of the survivor.
 Health professionals should also ask survivors whether they were examined elsewhere
before reaching the current health set up and if survivors are carrying documentation of the
same. If this is the case, health professionals must refrain from carrying out an examination
just because the police have brought a requisition and also explain the same to them.
 The health sector has a therapeutic role and confidentiality of information and privacy in the
entire course of examination and treatment must be ensured. The police should not be
present while details of the incident of sexual violence, examination, evidence collection,
and treatment are being sought from the survivor.
 The police cannot interface with the duties of a health professional. They cannot take away
the survivor immediately after evidence collection but must wait until treatment and care are
provided.
 In the case of unaccompanied survivors brought by the police for sexual violence
examination, police should not be asked to sign as a witness in the medico-legal form. In
such situations, a senior medical officer or any health professional should sign as a witness
in the best interest of the survivor.
 Health professionals must not entertain questions from the police such as "whether a rape
occurred", "whether the survivor is capable of sexual intercourse", "whether the person is
capable of having sexual intercourse". They should explain the nature of medico-legal
evidence, its limitations as well as the role of examining doctors as expert witnesses.
189
Types of sexual offences covered under the Act and punishments thereof
List of sexual offences under the Act and the punishment for the offences:
S.No Offence and Description Punishment
1 Section 3 Section 4
Penetrative Sexual Assault Not less than seven years of
Inserting body part or object in a child, or imprisonment which may extend to
making a child does this with another. imprisonment for life, and fine
Aggravated Penetrative Sexual Assault Not less than ten years of
Penetrative sexual assault by a police officer, imprisonment which may extend to
member of armed forces, public servant, the imprisonment for life, and fine
staff of remand home, jail, hospital or school.
It includes penetrative sexual assault
committed by any other person through gang
penetrative assault, penetrative sexual
assault using deadly weapons, fire, heated
substance or corrosive substance, penetrative
sexual assault which physically incapacitates
the child or causes child to become mentally
ill, causing grievous hurt or bodily harm and
injury to the sexual organs of the child, making
girl child pregnant, inflicting child with HIV or
any other life-threatening disease, penetrative
sexual assault more than once, penetrative
sexual assault on a child younger than 12
years, by a relative, owner / manager or staff
of any institution providing services to the
child, by a person in a position of trust or
authority over the child, committing
190
penetrative sexual assault knowing the child
is pregnant, attempts to murder the child, by a
person previously convicted for a sexual
offence, penetrative sexual assault in the
course of communal or sectarian violence,
penetrative sexual assault and making the
child strip or parade naked in public.
Sexual Assault Not less than three years of
With sexual intent touching the private parts imprisonment which may extend to five
of a child. years, and fine
Aggravated Sexual Assault Not less than five years of
Sexual assault by a police officer, member imprisonment which may extend to
of armed forces, public servant, staff of seven years, and fine (Section 10)
remand home/jail/hospital/school, etc, and
other acts of sexual assault by any person
as mentioned in the second part of section
5, except making a girl child pregnant.
Sexual Harassment of the Child Up to three years of imprisonment
With sexual intent: and fine
showing any object/body part, or
making any gesture aimed at a child
making a child exhibit her body
enticing or threatening to use a child for
pornography
6 Section 13 Section 14 (1)
Use of Child for Pornographic Purposes Imprisonment up to five years and fine and
in the event of subsequent conviction, up
to seven years and Fine.
7 Section 14 (2) Section 14 (2)
Penetrative sexual assault by directly Not less than ten years of imprisonment,
participating in pornographic acts which may extend to imprisonment for life,
and fine
191
Aggravated penetrative sexual assault by Rigorous imprisonment for life and
directly participating in pornographic acts Fine

Sexual assault by directly participating in Not less than six years of
pornographic acts imprisonment which may extend to eight
years, and fine

Aggravated sexual assault by directly Not less than eight years of
participating in pornographic acts imprisonment which may extend to ten
years, and fine
Storage of pornographic material involving a Three years of imprisonment and /or fine
child for commercial purposes
Punishment for failure to report or record a (i) Imprisonment of either description
case by (i) Any person; (ii) Any person, being in which may extend to six months or with
charge of any company or an institution. fine or with both
(This offence does not apply to a child) (ii) Any person, being in charge of any
company or an institution (by whatever
name called) who fails to report the
commission of an offence under sub
section(1) of section 19 in respect of a
subordinate under his control shall be
punished with imprisonment for a term
which may extend to one year and with
fine.
(1) Punishment for false complaint or false (1) Imprisonment for a term which
information in respect of an offence may extend to six months or with
committed under sections 3, 5, 7 and fine or with both.
section 9 solely with the intention to (3) Imprisonment which may extend
humiliate, extort or threaten or defame to one year or with fine or with both.
him.
192
(2) False complaint or providing false
information against a child knowing it to
be false, thereby victimizing such child in
any of the offences under this Act.
(This offence does not apply to a child)
Note: POCSO Act and Rules, 2012 are enclosed as annexure at the end of this
Amendment to the Act

POCSO or the Protection of Children from Sexual Offences Act came into being from 2012 that
includes provisions related to punishing pedophilic offenders for offenses like child pornography,
sexual abuse categorized in penetrative and non-penetrative offenses, or attempt to abuse, etc.
What Exactly Is Pedophilia?
Pedophilia is a psychiatric disorder of adults or older adolescent that experience a sexual

attraction to prepubescent (time before someone’s body becomes physically mature) children283.
The punishment for these heinous offenses in the POCSO Act is now under the
amendment. Moreover, the offenders in such cases are generally people with pedophilic tendencies
and these people even after release from jail still commit the shameful offense over and over again.
On April 21, Saturday, after the spine-chilling rape case in Kathua, the central government
amended the Protection of Children from Sexual Offences (POCSO) Act. The government may
bring an ordinance to implement the changes, considering the urgency of the situation. The
amendment passed for the former law includes:
“Grant of the DEATH PENALTY to Offenders For The Rape Of Minor Child (Under The Age
Of 12 Years)”.States like Rajasthan, Madhya Pradesh, and Haryana have approved a bill for a
death penalty to those who rape girls below the age of 12 years.
Here are the Highlights of Amendment in the POCSO Act284

Punishment for Child Rapists: Death Penalty & Lifetime Imprisonment
 In the case of gang-rape of a girl aged below 12 years-then, Punishment will be- Death
Penalty or Life Imprisonment.
283
From Wikipedia, the free encyclopedia, can be seen at: https://en.wikipedia.org/wiki/Pedophilia
284
As per The Criminal Amendment Act, 2018 passed by the Government can be at
https://www.scconline.com/blog/post/2018/09/06/criminal-law-amendment-act-2018-salient-features/
193
 In case of rape of a girl aged below 12 years of age, then, Punishment will be- Death
Penalty, Life Imprisonment or a Minimum Imprisonment of 20 years.
 In the case of gang-rape of a girl aged below 16 years, then Punishment will be- Lifetime
Imprisonment.
 In case of rape of a girl aged below 16 years, then Punishment will be- Imprisonment for 20
years (earlier it was 10 years) which is extendable to lifetime imprisonment.
 In case of rape of a woman, then Minimum Punishment will be Imprisonment for 10
years (earlier it was 7 years) which is extendable to lifetime imprisonment.
Limitation for the Trials and Investigation

 Investigation of rape cases must be completed within 2 months.
 The trial of rape cases should be concluded in 2 months.
 Time limit of 6 months is given for disposal of appeals in rape cases.
Restrictions on Bail
 No anticipatory bail is provided where the accused is charged with the offence of rape case
or gang rape case of a girl below 16 years of age.
 Before deciding upon bail application concerning the rape of a girl under 16 years of age, the
court has to give notice of 15 days to the public prosecutor and the representative of the
victim.
Other Provisions of the Amendment

 The existing One Step Center scheme must provide assistance or extended to each and every
district of the nation to support the victim in the manner to recover from it.
 For speeding, the investigation dedicated manpower will be provided for investigation of
rape cases.
 Exclusive forensic labs must be established in each State or UT dealing the rape cases only.
 All Police Stations and hospitals must have Special forensic kits to measure the issue in
the rape cases.
 After consultation with States/UTs and High Courts, a New Fast Track Courts will be set
up.
 Creation of new posts of public prosecutors in consultation with States/UTs.
194
 National Crime Records Bureau is duty bound to maintain database and profile of sex
offenders at the national level. This list will be further shared with states/UTs to track,
monitor, investigate and verify better with police.
The provision of the are Lanzarate and Budget are low and differences are there in allotment
convention can indeed serve and support as benchmarks for substitute criminal Law & offer
guidance to any state in any part of the world globally in the development of legislation that is
harmonized internationally. The POCSO Act would be a great asset for curbing sexual offences
against children. The need of the hour is mass awakening measures incorporate in POCSO Act and
other criminal Laws and its effective implementation need to be geared up at the appropriate level.
5.2 Analytical study

In this study there are different aspect are consider that are no of cases, classification on the basis of
age, no of victims, girls victim, boys victim, top 5 states where the POCSO is on high. Previous
year’s data is compared that how much case is registered, solved or pending, conviction rates and
also fund released and utilized by the government to execute the legislation this study is concluded
here.
To understand this issue there is a graphical representation is done on the data collected from
different areas or from different years that is mention and explain as 1,04,976 number of cases
enrolled under POCSO Act in between the year 2014-16 ,such data is specified by the National
Crime Records Bureau, in that respect in 2014, 2015 and 2016 that no of cases 34,449, 34,505 and
36,022 are recorded in the POCSO Act, 2012, in connection with the other section of IPC. Crime
against children accounting 0.2% in 2015 over 2014 and 4.4% in 2016 over 2015. The details are
given below as in the table or the Column graph form as Figure- 1.1 285:
Cases registered under Sexual abuse Protection of children from sexual offences act
Year Count
2014 34449
2015 34505
2016 36022
285
Press Information Bureau of Government of India, Ministry of Women and Child Development, 09-August-2018
19:18 IST can be seen online at http://pib.nic.in/newsite/PrintRelease.aspx?relid=181762
195
C as e s Re gi s te re d unde r S e x ual abus e /P rote cti on of
chi l dre n f rom s e x ual off e nce s act,2 0 1 2
36500
36000
No. of Cases Registered

35500
35000
34500
34000
33500
2014 2015 2016
Year
Figure - 1.1
According to the NCRB recorded, it resulted out that, 90000 or more than it cases registered or
recoded in the POCSO and unsettled at the end of 2016. In that year, about 10884 cases can sum up
with the trial with the conviction rate of 29.6%, which is much lesser as compared to the conviction
rate related to all the crimes of IPC.
The government must pass an ordinance while amending the basic laws that are the Indian Penal
Code (IPC), Code of Criminal Procedure (CrPC) and the Protection of Children from Sexual
Offences (POCSO) act. The ordinance seeks to enhance the quantum of punishment for perpetrators
of sexual crimes against children in addition to imposing new timelines for investigation and trial of
such cases.
Almost every year, approximately 30,000 or more cases are registered in the distinct sections of
POCSO maximum cases out of this in connection with Child rape occurrence. In 2014, out of the
34,449 cases registered under POCSO, 13,766 were cases of Child rape (40% of all the cases). In
2015, out of the total 34,505 cases registered under POCSO, 10,854 were cases of child rape. In
2016, out of the total 36,022 cases registered under POCSO, 19,765 were cases of child rape, that
hugely increased by 55%.286It was mention in a bar graph as Figure-1.2.
In each of these years, the number of cases in which trials were completed was around 10000. Trials
were completed in 7487 cases in 2014, 10498 cases in 2015 and 10884 cases in 2016
286
RAKESH DUBBUDU, Pendency of close to 90% in cases registered under POCSO on APRIL 23, 2018 can be seen on
https://factly.in/pendency-close-90-cases-registered-pocso/
196
Figure - 1.2
There is also a tabular format in that previous year’s data is analyzed in the form of how many
cases were registered, charge sheet present in the cases, investigation pending in how many cases,
conviction in the cases, accused is arrested as per the conviction rates are explained in the table
mention below in Figure- 1.3:
Categ CR CSS CON PAR PCS PCV

ory
2014 34449 28393 2275 41732 36653 2686
2015 34505 30113 3809 41090 37683 4567
2016 36022 30891 3226 42196 37872 3859
Figure - 1.3
The denotation to be labeled here in the graph as shown here, Cases Registered (CR), Cases
Charge Sheeted (CCS), Cases pending investigation at the end of the year (CPIEY), Cases
Convicted (CON), Cases Pending Trial at the end of the year (CPTEY), Persons Arrested (PAR),
Persons Charge sheeted (PCS), Persons Convicted (PCV)287
Pendency and relatively low in conviction

287
Press Information Bureau of Government of India, Ministry of Women and Child Development 09-August-2018
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197
As compare to IPC there were low conviction rate in POCSO even if their trials were completed as
explained here in 2014, it was 30.4% in contrary to 45.1% of all crimes under IPC. In 2015, the
situation is improved as 36.3% contrary to 46.9% of the crimes covered under the IPC. In 2016, the
conviction rate of the cases related to POCSO was decreased as in 29.6%, while in the IPC it stood
as it is 46.8%288.
If there is a low conviction of the cases, it will surely make up the pendency of the cases. By the end
of 2016, about to 90,000 or more cases recorded and pending in the trial courts under the POCSO
Act. At the current pace, it is going to take many years before the pending cases are cleared. It was
shown under Figure - 1.4 as in bar graph here :
Figure - 1.4
As the specifically detailed analysis is done on the data based on the year 2016 is that shown as
below:
This representation is based on the Data collected by the NCRB open source, that in the year
2016289. Total 39,068 girls and women are raped in particular year. In which there is a further
classification is done with the reference of age though that who are above 18 and 18 + are
considered adult victim and those who are below the age of 18 are the child victims. Out of this
22,205 adult victim and the remaining that is 16,863 are the minor victim. Out of that a further
classification is done of 16,863 minor children in a tabular form and their graphical representation is
in the pie chart are shown below as in the Figure-1.5 :
288
RAKESH DUBBUDU, Pendency of close to 90% in cases registered under POCSO on APRIL 23, 2018 can be seen on
https://factly.in/pendency-close-90-cases-registered-pocso/
289
NCRB Open Data Source,2016 can be seen on https://images.news18.com/ibnlive/uploads/2018/04/child-
rape_1.jpg
198
Age of girl child Number of Percentage
Victims girl
child victims
Below 6 Years 508 1.3
6-12 years 1602 4.1
12-16 years 6095 15.6
16-18 years 8674 22.2
N umbe r of Girl Child Victi ms

508
1602
8674
6095
Below 6 years 6-12 years 12-16 years 16-18 years
Figure - 1.5
The situation is not just like that only total 19,920 children were raped in 2016 out of that 16,863
are the girl’s victim so remaining data shows that 3,057 are the male victim below the age of 18
years of age that explained below in Figure- 1.6 in a table format as well as in bar graph 290:
290
rape_1.jpg
199
This study is based on the data collected by the NCRB, but the abuse was more prevalent than its
shows here because total 1.1 LAKH children became victims of crime out of which 33% was the
victim of sexual crimes, so the situation is worse than we think.291
Gender wise Number of Percentage

split victim
Male victims
3057 15.35
Female
victims
16863 84.65
Gender wise split among victims
Female victims
Male victims
0.00 10.00 20.00 30.00 40.00 50.00 60.00 70.00 80.00 90.00
Figure - 1.6
It not just done in specific region or area but the crime is prevalent into the whole of India. From top
to bottom it as spread all over. So here is rape cases registered under POCSO in 2016, with the 376
of IPC a state-wise classification is done highest number of reported cases in 2016 are shown here
are mention in Figure-1.7 as in table form and also explain as a pie chart here below 292:
State Count
Madhya
Pradesh 2467
Maharashtra 2292
291
rape_1.jpg
Deeptiman Tiwary, NCRB data, 2016: Huge spike in rape of children, up by 82% from 2015, UP, MP worst states, TN
292
new entrant, https://indianexpress.com/article/explained/ncrb-data-2016-huge-spike-in-rape-of-children-up-by-82-

from-2015-up-mp-worst-states-tamil-nadu-new-entrant-4962477/
200
Uttar
Pradesh 2115
Orissa 1258
Tamil Nadu 1169
R ape Cas e s re gs ite re d unde r IPC and

POCSO in 2 0 1 6
1169 2467
1258
2115 2292
Madhya Pradesh Maharashtra Uttar Pradesh

Orissa Tamil Nadu
Figure - 1.7
Although there is graphical representation of crimes based on the population that is more than 1
LAKH and the state which shown the highest rates of crimes that explains the list of states where
the population is more than one Lac and crime rates are higher in relation to POCSO Act such be
shown in table format as well as in the bar graph format are to be mention below in the Figure-1.8
293
:
Rate of crimes (Incidents/one Lac people of the population)
State Rate of Crime

Delhi 146
Chhattisgarh 47.2
Rate of Crime (Incidents/1 lakh people of
Madhya Pradesh 45.7
populati on) in 2016
Madhya Pradesh
Chattisgarh
293
Deeptiman Tiwary, NCRB data, 2016: Huge spike in rape of children, up by 82% from 2015, UP, MP worst states, TN
new entrant, https://indianexpress.com/article/explained/ncrb-data-2016-huge-spike-in-rape-of-children-up-by-82-
from-2015-up-mp-worst-states-tamil-nadu-new-entrant-4962477/
Delhi
201
0 20 40 60 80 100 120 140 160
Figure - 1.8
To work out something the basic requirement is the grants as financial help are indeed to execute
anything or work in process. As to execute the Laws and the procedure there is also funds are
granted by the commission to the different department and the agency to come out with the result.
So here a list of the amounts raised and utilized by the Government during the last 3 years that is to
be 2015, 2016, 2017, and 2018 under the special scheme that is Integrated Child Protection Scheme
(ICPS)294. Here the table shows the data of fund released and utilized by the authority of last three
years just to analysis the appropriate funding and their maximum utilization thereof is here mention
below in tabular format as well as column graph as in Figure -1.9 below:
Status of grant released and utilized under the Integrated Child Protection Scheme [ICPS] as on
16.07.2018
Year 2015-16 2016-17 2017-18 2018-19
Amount Amount Amount Amount Amount Amount Amount

Category
released Utilized released Utilized released Utilized released
52694.9
Total Amount 43892.10 40379.36 50847.97 46769.35 52469.95 10965.87
1
294
Press Information Bureau of Government of India, Ministry of Women and Child Development,09-August-2018
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202
Stat us of Grants re le as e d and uti liz e d
60000
50000
40000
30000
20000
10000
0
2015-16 2016-17 2017-18
Amount released Amount utilized
Figure-1.9
The amount released in the year 2018-19 is 10965.87 is mention here but the utilized amount is
not to be declared as its current data.
Juvenile Justice (Care and Protection of Children) (JJ) Act 2015 is the primary law to protect the
interest of children in need of care and protection and in conflict with the law. Integrated Child
Protection Scheme (ICPS) now “Child Protection Services” under Integrated Child Development
Services, is implemented with the aim to create a safety net of dedicated structures, services and
personnel to protect the children who are in need or care along with that reduce the culpability of
the circumstances, behavior, that advances before the abuse, exploitation and segregation of
children from their families.
In the child protection services scheme, the financial help is granted to state or UT on sharing basis,
as in to operate the situation with the analytical approach to children and maintain the multifarious
type of Child Care Institutions (CCIs), to determine the rehabilitative standard. In such child care
institutions, education is provided as per their age to children in the same in an institution or any
other outside institution, to have a formal education with the supportive of other schemes and
programs run by the government in the civil society. There is another system named as non-
institutional care, which actually provides services in an extended ways like for adoption, foster care
and sponsorship.
On the data reflects by the government that shows there is 20% or more vacancies are lies in the
police department over the country though they are sanctioned seats of the government. In addition
to that, to reform, the Police department prescribed guideline mention by the Supreme Court in the
case of Prakash Singh & others, but many States fails to implement it. Additionally, more than 20%
of the posts are vacant in the lower judiciary. It was only done by mix effort of the Central & State
203
governments to consider such issue and make compelling improvement in the system. Such
proposed changes must be accomplished by the passing an ordinance in connection with the
renovation or reforms and in the competency of both departments such as police & the lower
judiciary.295
5.3 Case Study

There are cases related with POCSO Act that are especially to deal with the protection, provide
rehabilitation and to punish the offender as per the guiding principle with their proper execution of
the prevailing laws to secure the ends of justice as well as to cure the society of such heinous
crimes.
There are cases related to the feature of the distinct act cause before the law has passed the situation
are not clear as per the today condition there was the only provision of rape, and if a by another
form of sexual abuse is used is collectively consider as only in the outraging the modesty of the
woman either is slight in the way or in any brutal case of it doesn’t matter the punishment is the
same for all and very less.
BEFORE POCSO
 In this, the accused had inserted his fingers inside the vagina and anus of a five-year-old girl.
The accused is charged with the offence of 'outraging the modesty of a woman’ because
offence like ‘penetration with the finger’s is not covered in Indian Laws, that’s why defence
won the case296.
 In this case, offender gives the control of penis in the hand of minor boys as to move in that
direction, which will create a slit in this movement of interjection and resist it on the
discharge of semen. The case surely comes in the category of the child sexual abuse, but
prior to act, it was punishable under Section 377 of the IPC, in the name of unnatural
offences297.
CONSENT
295
Press Information Bureau of Government of India, Ministry of Women and Child Development,09-
August-2018 19:18 IST online can be seen at http://pib.nic.in/newsite/PrintRelease.aspx?relid=181762
296
State vs Pankaj Chaudhary (2011),
297
State of Madras vs. K.Govindan, (1969)Cr LJ 823(ker).
204
 Sexual intercourse below the age of 16 years amounts to rape, whether it is done with or
without her consent under Sec.375 (6) of IPC explains along with that consent of a minor is
no consent as under Sec.90 of the IPC. In this case, it was argued that there were no injuries
were found on her private parts, it seems that the prosecutrix is used to have sexual
intercourse also it was held that it was done with the consent. Nonetheless, the Supreme
Court directed that question of consent is irrelevant while the age of girl victim is below 16
years of age.298
AFTER POCSO
 The Apna Ghar sexual abuse case unfolded299

On May 7, 2012, three girls from Apna Ghar, a shelter home in Rohtak, courageous to
escape and exposed the naked dance of brutality inside it. Then only a swift rescue operation
of the National Commission for Protection of Child Rights (NCPCR), come into action and
take off the hood from this scam.
A day after the escape, girls reached Delhi via Bhiwani where they were rescued following
their call to child helpline number. Later, around 120 inmates were rescued and a month
later, Apna Ghar was sealed. Seven out of 10 persons who faced the trial were arrested on
May 10, 2012, and the case was handed over to CBI for the probe. The first charge sheet was
filed on August 7, 2012, and supplementary on September 16, 2013, which named three
more accused.
Nine people, including main accused Jaswanti Devi, her daughter Sushma alias Simmi, son-
in-law Jai Bhagwan, brother Jaswant, cousin Sheela, acquaintance Roshni, driver Satish,
employee Ram Prakash Saini and counsellor Veena were held guilty by a special CBI court.
All of them were charged and tried for rape, abortion without consent, voluntarily causing
hurt, assault or use of criminal force on a woman with intent to outrage her modesty,
unlawful compulsory labor, coercion, conspiracy. In spite of that, charged under the specific
acts like violation of the Immoral Trafficking (Prevention) Act and the Juvenile Justice Act
along with that, an additional charge of gangrape was framed against Jai Bhagwan and
Satish.
298
Harpal Singh vs. State of Himachal Pradesh, AIR 1981 SC 361,
299
https://www.hindustantimes.com/india-news/all-about-rohtak-s-apna-ghar-sexual-abuse-case-the-horror-tales-
and-how-it-unfolded/story-M7ubCPrcH7H3S77N64RxUJ.html
First Published: Apr 27, 2018 16:16 IST Last accessed on 2019
205
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.
In consequent to the petition filled by the National Commission for Protection of Child
Rights (NCPCR), the High Court, in the accordance of the mileage stone judgment, directed
to the government of the Punjab, Haryana and Chandigarh to ensure that State Commissions
for Protection of Child Rights become fully functional, are headed by a person who has been
a Judge of the High Court, and that chairpersons and members are appointed through a
transparent selection process.
The High Court further directed mandatory registration of all children’s homes, constitution
and notification of children’s courts and appointment of special public prosecutors besides
ordering the setting up of a proper panel to select members of various committees to be set
up for child welfare.
Hence, the entire machinery for monitoring child rights has been galvanized. It has also been
ordered that the National Commissions and State Commissions shall start implementing
POCSO’s provisions while discharging their functions and that modules/training
programmes be initiated in the Chandigarh Judicial Academy to sensitize all stakeholders on
child rights and deal with cases in Children’s Court. Now, it is mandatory for the state
government to execute this beneficial statue and make an impressive system to check or
analyze the shameful crime that is sexual abuse against the children.
The Justice Verma Committee Report, in one of its conclusions on child sexual abuse, holds
that “there is an urgent need to audit the performance of all institutions of governance and
law and order”.
We need to consolidate our efforts and focus our energies on existing laws rather than
looking to amend more laws and making still further newer laws, alien to our culture,
society, habits, lifestyles and harsh realities of the common man. Insofar as child sex abuse
is concerned, POCSO is a wholesome law. It’s the government, who create the system along
with education to officers as well as the stakeholder to execute the law in a proper manner.
 In this case, two men could face life imprisonment under POCSO, for sexually assaulting a
five-year-old girl. This case began in April 2013.300
Means rea
300
State vs Manoj Shah and Pradeep Kumar (2013),
206
 The Supreme Court held that the legislature can legislate an offence without an ingredient of
mens rea and the requirement of actual knowledge/mens rea that the act is in contravention
of law can be done away with in respect of an offence. The POCSO Act has not done away
with mens rea in offences which require a culpable mental state. The specific intent of an
offender to do the acts constituting the offence must be seen as constituting mens rea. The
defence that the offender had no knowledge that his/her acts constituted an offence under
POCSO is no valid excuse.301
Plea of General Exception
 In this case, if the charges are framed under any special act like POCSO, can the plea of the
general exception provided under IPC is taken by the lawyers that issue is questioned.
Where in accused was framed under Section 376(f) and Section 506 of IPC and Section 6 of
POCSO Act, and the plea of insanity was taken by the accused. It was answered
affirmatively by the citing this judgment; 302
Missing Complaints Procedure
 The Supreme Court laid down the steps to be taken by Investigation Officers for tracing
missing girls. These steps include publishing photographs of the missing child with the
permission of the parent/guardian, making inquiries in the neighborhood, contacting the
school and making inquiries on incidents of violence in the family.303
 In this case the Supreme Court passed an interim direction that in case of a complaint with
regard to any missing children is made in a police station, the same should be reduced into
FIR and appropriate steps should be taken to see that follow- up investigation is taken up
immediately thereafter. The Supreme Court directed the National Legal Services Authority
and the para-legal volunteers, recruited by the Legal Services Authorities, should be utilized,
so that there is, at least, minimum one paralegal service provider, in transit, in the police
station to check the procedure in which system the complaints are lodge as relating to
children missing or in any other cases related to children304.
301
State of Maharashtra v Mayer Hans George AIR 1965 SC 722
302
Vinod Alais Dinesh v State of Himachal Pradesh [(2016) (0) HP 893],
303
In Hori Lal vs. Commissioner of Police, Delhi and Ors W.P (Crl) 610 of 1996, Lillu @ Rajesh and Anr vs.
State of Haryana 2013 (6) SCALE
304
Bachpan Bachao Andolan vs. Union of India and Ors W.P (C) 75/2012,
207
Inhumane treatment
 In a case decided by the Himachal Pradesh High Court, a minor girl child victim of rape was
taken by the police officer for medical examination to three medical establishments one after
another before she could be examined at 5:40 am after undergoing trauma for 15 hours.305
Evidence on video conferencing
 In this case, the Supreme Court interpreted the law and accepted the argument that evidence
of witness through video conferencing is permissible. The following procedures should be
adhered to when recording such evidence through video-conferencing or video-link.306
The Identity of the victim kept confidential
 The name of the child, the family, educational institution wherein s/he is enrolled, and other
information capable of identifying her/him shall be kept confidential [Article 3 of the CRC,
Preamble to the POCSO Act, 307
Competency of a child witness
 Important guidelines were laid down recently to test the competency of a child witness by
the trial court were directed to be circulated to all judges in the District Courts in Delhi for
compliance.308
As to the value of the evidence of a child witness it was observed by the Supreme Court in
Suryanarayana v State of Karnataka309, that:
(The witness) who at the time of occurrence was about four years of age, is the only solitary
eye-witness who was rightly not given the oath. The position and the situation of the case
suggest, as per the time and place it was impossible to have any person as an eye witness.
The evidence of the child witness cannot be rejected per se, but the Court, as a rule of
prudence, is required to consider such evidence with close scrutiny and only on being
convinced about the quality of the statements and its reliability, base conviction by accepting
the statement of the child witness.
305
SikshaVs. State of Himachal Pradesh, 2013 Cri L.J. 2036
306
State of Maharashtra Vs. Praful B. Desai [2003 SCC (Cr) 827]
307
Shankar Kisanrao Khade vs. State of Maharashtra 2013 (6) SCALE 277]
308
State Vs. Rahul Crl P. 250/2012 decided by Hon‘ble Gita Mittal and JR Midha JJ of the Delhi High Court on
15 April 2013.
309
(2001) 9 SCC 129
208
If she is shown to have stood the test of cross-examination and there is no infirmity in her
evidence, the prosecution can rightly claim a conviction based upon her testimony alone.
Corroboration of the testimony of a child witness is not a rule but a measure of caution and
prudence. Conflicts in the stamen of the child witness cannot be a ground for the rejection of
the testimony. Inconsistency in the dismissal is not concrete items that inference the witness
child testimony, in the normal situations, and like to mix all of them, that what actually a
witness saw or likely to imagine what has been seen. While appreciating the evidence of the
child witness, the Courts are required to rule out the possibility of the child being tortured. In
the absence of any allegation regarding torturing or using the child witness for ulterior
purposes of the prosecution, the Courts have no option but to rely upon the determination or
firmness rousing the testimony of the witness for charging the accused as responsible or not.
Love, Sex, Marry, Age and Consent in Conflict
 In this case, a 15-year-old girl left home and married a 22-year-old man. Her mother filed a
complaint alleging that the man had kidnapped and sexually assaulted her. While in the
proceeding, the girl admitted that she willingly went and has sexual intercourse.
 In court, the girl admitted to having gone willingly and to having sexual intercourse. Judge
Dharmesh Sharma was of the view that a strict interpretation of the POCSO Act ‘would
mean that the human body of every individual under 18 years of age is the only property of
State and no individual under the age of 18 years are permitted to enjoy the comfort related
with one’s own body.’
He explained that as per the language of the act, the words ‘penetrative sexual assault’
mention in Section 3 of the POCSO Act propound that any kind of physical relationship or
sexual intercourse with consent of a girl child which is not derived by coercion or not in the
nature of an assault or use of criminal force, or which is not resulting in exploitation, or
where the consent is not obtained for unlawful purpose, no offence within the ambit of
Section 3 of POCSO Act can be said to have been committed.’
Further, he cited the acceptance of the marriage by the mother and that sending the man to
prison ‘would not be conductive to mental, psychological, physical health’ of the girl, while
acquitting the accused. By this judgment, it is not clear how to deal with cases of consented
relationship or love affairs matters.310
310
State v. Suman Dass Decided on 17.8.2013 by Dharmesh Sharma, ASJ01, New Delhi District, Patiala House
Courts, New Delhi SC No. 66/13
209
 In that case, again a girl aged 14 to 16 years of age, voluntarily married to an old man, in
such situation again Judge Dharmesh Sharma examine, as, according to section 4 of the act
has to depict to distinguish the age criteria is so condemning that the age range floats
between the age of 16 to 18 years of range, that can be solely be criminal in the effect of
intimidation, fear, inducement or exploitation committed upon a child; from an act which
would otherwise criminalize a person for having done something which is without any
malice, ill will or ulterior motives. Hence, the intention is measurable, but he was lacking to
mention the significant criteria to examine the difference between the voluntary action or
action due to power. The explanation of justice can mislead the case due to not of mature
understanding of the cases of child sexual abuse. Because, the process of grooming is used
in day to day life, by the offender to just gain the trust and approach to the child to control
over the physical and psychological needs. Along with that it is not always necessary that
sexual abuse is always an outcome of force, intimidation, assault, or physical or mental
violence.311
 In this case, a 14-year-old girl was in a sexual relationship with her landlord. Compliant is
registered by the mother after knowledge about the 6 months pregnancy of the daughter.
During the proceedings, the girl admitted the fact that the matter is reported only after the
refusal of the marriage. While in the trials accused offered to marry a girl and deposit a sum
of 30,000 along with that provide shelter to mother. The marriage happens, when the
accused released on bail. Judge make sure that the compliance of the bond along with that
the revocation of the statement of the girl and her mother.312
 In Judge Shalini Nagpal, Chandigarh held that ‘having a love affair with the prosecutrix
and having conversations with her would not give a license to the accused to commit rape or
to have sexual intercourse with consent, because consent in the matter like penetrative
sexual assault with the child is irrelevant.’ In this case, parties are in a relationship, against
the parent’s will313.
Above verdict create ambiguity in the society as relating to the rights of privacy, the
integrity of an adolescents life, irrespective of marriage. Is marriage is the wholesome
protection for girls from sexual abuses? Along with what about the marital rape exception, is
inevitably applied in POCSO cases? Judges give an option to the accused, to bypass the
311
State v. Shiva Nand Rai, decided on 9.10.2013by Dharmesh Sharma, ASJ01, New Delhi District, Patiala
House Courts, New Delhi, SC No. 56/13
312
State v. Aas Mohammad Decided on 13.8.2013 by Judge T.S. Kashyap. SC NO. 78/2013.
313
State v Iskhar Ahmed Decided on 3.12.2013 by Shalini Singh Nagpal, Judge, Special Court, Chandigarh. SC
No. 0300064 of 2013
210
punishment, or sanctioned an offer in the form of marriage. Should not the age difference,
voluntary nature of the relationship, and its psychological and physical impact on the child
be considered? What would be in the ‘best interest of the child’ in such cases?
In addition to that, a problematic issue has an insufficient concentration in regard to the

couple under the age of 18 years, must be considered as a juvenile in conflict with the law.
On the other hand, the National Commission for Protection of Child Right (NCPCR)
emphasizes reconsider or legitimates the relationship, if it was consensual sexual expedition
among adolescents when the situation is like:
 Children more than 12 years of age, while the age-gap was less than two years and
 Children more than 14 years of age, whereas the age-gap was less than three years.
By ignoring this criterion, the POCSO Act only leads and merges the cases of child sexual
activity into child abuses. It has failed to consider nuances of age, age difference, and child
development.
 In Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional
Development 314 the Constitutional Court of South Africa confirmed that provisions of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which
criminalized and consider unconstitutional, consensual sexual conduct of adolescents who
are above 12 years and below 16 years, of age. The deception of criminal liability on
adolescents for indulging in such consensual sexual activities was contrary to the right to
have dignity, right to privacy, and averse to the best-interests principle.
We here not questioning the POCSO Act, on the point of restraining or infringing all rights
to have consensual sexual activities in between children, without noticing any sovereignty
and fundamental rights? Should the law not be amended to ensure that age-gaps
are considered? Also, judicial blessings for marriages between perpetrators and their child
victims, not only sanctions marital violence, but child marriage – both of which are illegal,
and requires to be prohibited.
 Independent Thought, one of the leading NGOs which indulge with the child rights, had
filed public interest litigation in the Supreme Court of India and questioned the
constitutional validity of exception 2 to section 375 of the IPC, that explain here as Sexual
314
[2013] ZACC 35. Decided by the Constitutional Court of South Africa on 03.10.2013,
http://www.saflii.org/za/cases/ZACC/2013/35.pdf ,
211
intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years
of age, is not rape.
Issues were raised, on two main points such as:

 Is that sexual intercourse in between husband and wife, while the age of two of them
is between the 15 and 18 years of age than it amounts to rape?
 Is the provision of section 375, exception 2 is in the violation of the fundamental
rights guaranteed under the constitutional laws.
What was held?

The judgment is benchmark judgment as it considered that any sexual intercourse act with
minor is an offence while the age ranges in between the age of 15 to 18 years of age. The
Court explained that the exception 2 in section 375 is violative of Articles 14, 15 and 21 of
the Indian Constitution which allows obstructing to have sexual intercourse with a girl below
18 and above 15 years on the ground of marriage. The exception clause of the rape laws
contradicts the basic object of the acts as the Prohibition of Child Marriage Act, Protection
of Children from Sexual Offences Act (POCSO), and some other international conventions
signed by the Indian government. Now, the laws are empowered to punish everyone who
indulges in sexual activity minor girl aged below 18 years of age, irrespective of marriage or
the consent, she remains, child, till attains the age of a majority.315
Not comply with the procedure of recording an FIR
 Petitioner is a minor who was kidnapped by a group of nine persons who had kept her
confined. The accused persons, in different combinations, had repeatedly raped her and that
one of the accused is a constable in Haryana Police. After being recovered, medical
examination of the girl was done, but neither the copy of the report was not furnished nor
any FIR under Section 376 D of the Indian Penal Code or not labeled the provisions of the
POCSO Act against the accused. A petition under Article 32 has been filed seeking
directions from the Court for registration of FIR under above-mentioned sections; for the
arrest of the accused. Appropriate actions have to be taken against the accused. Police by
way of departmental proceedings for their refusal/failure to register the FIR under IPC as
well as the POCSO Act, 2012.
In view of the arguments asserted by the counsels of both the respondents, the court held that
no order or direction to the first. Respondent would be justified in view of the fact that the
315
Independent Thought vs. Union of India and Anr.,
212
case has been registered by the Haryana Police and has been investigated by the authorities
of the State of Haryana.
Findings: The Hon’ble Court also finds that as the charge sheet has been filed against all the
nine accused and the trial has commenced in the meantime it will be wholly inappropriate to
exercise their jurisdiction under Article 32 of the Constitution.316
Committal of Cases
 An FIR was lodged by the victim's father under sections 147, 354 A, 352, 323 and 506 of
IPC and Sections 7/8 of POCSO act, 2012. After an investigation, the police laid charge-
sheet under Sections 352, 323 and 506 IPC only.
As a result, Victim’s father filed an affidavit alleging therein that the victim's age was about
16 years and as she had alleged molestation, etc. in her statement, offences punishable under
sections 147 and 354A of IPC and sections 7/8 of POCSO Act were also made out.
Upon receiving such affidavit, the learned Magistrate perused the police report and passed
the impugned order, thereby directing return of the charge-sheet for being laid before the
Special Court constituted under the POCSO Act.
In the order impugned, it was observed that from the material available in the case diary
offences punishable under Sections 323, 353, 354 and 506 IPC and Sections 7/8 of POCSO
Act were prima facie made out, but as it was not empowered to take cognizance of the
offences punishable under the POCSO Act, therefore, the charge sheet is to be returned for
presentation before the Special Court.
Court observed that, as the instant matter arises out of case which is based on a police report
and not on the complaint, after submission of the charge-sheet, the matter goes to the
Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and
committing the matter for trial or not. The Magistrate cannot exclude or include any section
into the charge-sheet after an investigation has been completed and charge-sheet has been
submitted by the police.
The same would be permissible by the trial court only at the time of framing of charge under
Sections 216, 218 or under Section 228 Cr.P.C as the case may be, which means that after
316
Nishu v. Commissioner of Police, Delhi and Ors. 2014 (3) ACR 2516 (SC)
213
submission of the charge sheet it is open for the prosecution to contend before the
appropriate trial court at the stage of framing of charge that on the given state of facts the
charge of certain other offences should also be framed.
Findings
The Hon’ble High Court held that in a case which is tries by a Court of Session through the
Magistrate could not add or alter a charge he is empowered under sections 209 and 323 of
the Code to commit the case to a Court of Session. Since under Section 31 of the POCSO
Act, a Special Court constituted under the said Act is deemed to be a Court of Session, the
Magistrate, if he finds that offences tries by a Special Court under the POCSO Act are also
made out, he is empowered to commit the case to the Special Court by taking aid of the
provisions of section 209 of the Code. But such commitment arises after the Magistrate takes
cognizance of the offences laid in the charge sheet.317
Cases where Abuser is Woman, Judicial officer, Father:
In the listed cases accused are girls, so the tendency that child abuse is always done by the
male is not always correct.
 In yet another case of child abuse, a Class 9 girl has been arrested for allegedly sexually
assaulting a Class 2 student inside the school premises in Delhi's Moti Nagar. The accused is
not minor because she failed in 9th class twice, that why the case registered under Sections
328/34 IPC and 6, 10 of the Protection of Children from Sexual Offences (POCSO) Act.
The victim, the one who is in class 2 is complaints the whereabouts of an incident to their
parents. Special Commissioner of Police and the police received a complaint acted promptly
on it. Two girls were found to be involved in this incident. While one has been arrested, the
other has been detained. Police are trying to verify the latter's age,"
As per the police, the victim explained that she is sexually exploited or assaulted form last
four months. The officer is finding that any other children are connected to it or not.
Meanwhile, the victim is sent to counseling. The police will soon start separate counseling
in schools to make children aware of sexual abuse. "Girls keep quiet about it. The need of
the hour is to speak out," 318
317
Ashish Kumar & others. Vs. State of U.P & others. MANU/UP/0439/2015
318
Nitisha Kashyap | CNN- News18 Updated: February 26, 2017, 7:11 PM IST
(https://www.news18.com/news/india/class-9-girl-held-for-sexually-assaulting-junior-inside-delhi-school-
1353474.html)
214
 In a relatively recent case reported from a Kanpur village, a 10-year-old boy was
hospitalized after a minor girl tried to have forceful sexual activity with him. The incident
took place in Kulhauli village of Bidhnu area when the 16-year-old girl sweet-talked the boy
from her neighborhood into her house and tried to have sex with him. In execution of the
crime, the victim sustains injuries to his private parts that needed to be hospitalized. Here the
confusion arises that both the victim and the accused are minor, so in what provision the
case is to be filled is the problem for the police department. Legal experts said that the case
should be framed under section 8 of the POCSO Act.319
 It is the first case of its kind in Uttar Pradesh, a woman has been booked for sexual assault
under sections of the Protection of Children from Sexual Offences (POCSO) following a
complaint by a minor boy.
In this case, a complaint is lodged by the order of the court to police to file a case against the
woman age 23 years, for pressuring a 16 years old boy to marry her. The charges were made
according to section 7 and 8 of POCSO Act, that explains sexual assault of minors along
with that section 386 of IPC deals with extortion with threats to hurt or kill the victim.
As per the police officials, some video clippings are there in the possession of the woman in
which the teenager is in the compromising situation, in connection to it, she harasses the boy
for sexual needs. She made pressure on him to marry either she will distribute the clips in
the society or online.
The boy’s brother had first approached the police with a complaint, but the police had
allegedly refused to file a case, as the accused was a woman while the victim was a boy,
contrary to the usual kind of cases filed in the state under the law. The boy’s family then
approached the court which instructed the police to lodge a complaint and investigate the
matter.
Following the court’s instructions, police have to lodge an FIR against the woman for
sexually assaulting a minor. Prima facie the matter appears to be a love affair but on later
stage, it was come to know that she initially pressure him to marry her as per the call record
and the messages, and boy refuses to do so. In this investigation process they find the video
showing the boy in a compromising position with the woman,” it is probably the first case
where I the woman is convicted under the POCSO Act on the compliant of a minor boy320.
319
Siksha vs. State of Himachal Pradesh, 2013 Cri L.J. 2036
320
http://timesofindia.indiatimes.com/articleshow/53916982.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst Pankul Sharma | TNN | Aug 29,
2016,23:03 IST
215
When the abuser is a judicial officer
 In this case, situation is very disappointing as the abuser is a 34-year-old former judge was
sentenced to three years’ rigorous imprisonment and a fine of Rs 10,000 for sexual assault
on a 15-year-old girl. According to legal experts, this is probably the first case where a judge
has been sentenced under the Protection of Children from Sexual Offenses Act (POCSO).
The former district judge of Khandala Court had been arrested by the Police official after the
family of the teenager, who was known to the abuser, had filed a complaint of rape against
him. The abuser is absconded when the FIR is getting registered. 6 month later he
surrenders himself when his anticipatory bails pleas were rejected by both the courts that is
Bombay High Court or the Supreme Court. The case is heard by the special court and found
guilty for molesting the girl as punishable under Section 354 of the Indian Penal Code (IPC)
and Section 8 of POCSO.
The charges of rape could not be proven against the abuser and he was convicted on the
charges of sexual harassment. Abuser and the victim were known to each other and she
would visit his house often. According to the prosecution, the girl would go to his house to
play carom. But, when abuser’s wife had gone to her parents’ house during her pregnancy,
then abuser had lured the girl home by promising to get her admitted to coaching class for
competitive exams. He had then sexually assaulted her. “A total of 11witnesses were
examined in the case. Police obtained the CCTV footage of that day from the society, which
clearly showed that the girl was entering his house. This evidence proved to be helpful in
making the case strong. It was explained by the special public prosecutor and the abuser
himself contended his side in the court.321
When the abuser is father
 In this case, the petition was filed with a prayer for formulating Guidelines under the
POCSO Act in order to identify children at home and school who were sexually abused.
The Petition was filed by a grandparent of a child along with his paternal aunt challenging
the validity of the Order of Child Welfare Committee which stepped in, to take care and
321
https://punemirror.indiatimes.com/pune/crime/pocso-conviction-for-ex-judge/articleshow/56148057.
cms Pune Mirror | Updated: Dec 24, 2016, 17:38 IST
216
protect the child on account of sexual assault alleged to have been committed by her own
father. The matter is yet to be listed before the Hon'ble Court.322
A girl falsely charged his father for sexual abuse
 In this case, there is a complaint filed by a girl child who is 16 years of age to police against
her father alleging that she is sexually abused by her father while she was sleeping with her
parents and her father touch her inappropriately or even he raped her on several occasion.
Her father is a daily wage worker and arrested by police and booked under the provision of
the POCSO Act.
During the trial process in the girl itself confessed that she filed a false complaint against her
father after an argument with him.
A strong message should be given that the POCSO Act should not be misused and
verification is always mandatory in is and every case. Because the complainant undoubtedly
misused the provision of laws and lodge a false complaint against her own father, due to this
he has to suffer mental agony and trauma. He lost his three years in jail because of such
serious allegation is raised against him.
The indispensable role of the judiciary is taking out in this case, when having all the benefits
to the said victim the court still scrutinize each and every part of the case to get the final
verdict. The court acquitted a man having false charges of sexual harassment on him, laid by
the minor daughter and order legal proceeding against her under the provision of perjury.
This judgment is considered a setting precedent or stringent effect of misuse of the POCSO
law in the relation to the POCSO cases.323
In the promise of marriage
 A special court in Korba district in Chhattisgarh has sentenced a 22-year-old man to life
imprisonment for raping a minor girl on the pretext of marrying her. Special judge under the
SC and ST (Prevention of Atrocities) Act, awarded life imprisonment to accused in the case,
Special Public Prosecutor.
322
M. Ramesan & Ors. Vs. Deputy Commissioner of Police & ors., WP (C) 21630/2014 (C), before Hon'ble Kerala High
Court
323
utm_source=plus.google.com&utm_medium=social&utm_campaign=TOIDesktop&utm_source=contentofin
terest&utm_medium=text&utm_campaign=cppst Nishikant karlikar | TNN | Updated: Dec24, 2016, 16:47
IST
217
A resident of Kartala police station area kidnapped the girl, who lived in the same locality.
He then took her towards Pathalgaon in the neighboring Raigarh district, where he raped her
after making a false promise of marrying her.
The family of the victim girl file an FIR relates to her abduction. Subsequently, the accused
was arrested by the police and the victim was freed from his captivity. The accused was
charged against the offences of rape and abduction under the IPC also provisions of the
Protection of Children from Sexual Offences Act (POCSO) were labeled on him. After
recording the statement of the victim and 13 others in the case, the accused was convicted.324
List of Supreme Court and High Court Cases
 Gajraj Singh v. State of U.P.325
Fact: An FIR is filed by the father of victim containing that his minor girl as per the date of
birth mention here 18.8.1996, is allured away with the accused named Ajit Singh. She was
recovered on 20.05.2014 from the possession of Ajit and charge sheet has been submitted in
the case against Ajit only under Section 366 and 363 and 3 & 4 of POCSO Act. Thereafter
applicant, as well as accused Ajit moved an application before the Special Judge/Additional
Session Judge for the custody of the girl. Father claimed that she is still a minor, whereas the
accused wanted custody of her on the ground that he was her husband. Rejecting both
applications, the court sent the girl to Nari Niketan. Hence the present petition has been filed
by the applicant for quashing of the impugned order passed by the Court below.
Remarks: In the instant case, the Hon’ble Court said that it is a well-settled law that a minor
cannot be confined in Nari Niketan against her wishes. In this regard, the Judgment of this
same Court was put forth. In the case of Smt. Parvati Devi v. State of U.P. and another, 1992
All Crl C 32, it has been observed by the Apex Court that the confinement of a victim in
Nari Niketan against her wishes, cannot be authorized under any provisions of the Code.
There is no such legal provision wherein the Magistrate has been authorized to issue
directions that a minor female child shall, against her wishes, be kept in Nari Niketan.
Therefore, the court held that it is a clear cut case of illegal confinement of minor against her
324
https://www.deccanchronicle.com/nation/crime/280217/youth-gets-life-term-for-raping-girl-in-
chhattisgarh.html, Published Feb 28, 2017, 7:12 pm IST,Updated Feb 28, 2017, 7:15 pm IST
325
2015 (3) ADJ 350, RAMESH SINHA, J
218
wishes violating a fundamental right. Hence, the impugned order of the Special Judge/
Additional Sessions Judge is hereby quashed.
 Avinash v. State of Karnataka 326

Fact: On 22.10.2013 the appellant committed an act of sexual assault after kidnapping the
victim in the night hours, then he took her to Bangalore and other places, there also he had
sexual intercourse with her. After the incident, Complaint has been filed on 23.10.2013 and
registered in Crime No. 188/13. On completion of the investigation, charge-sheet was
against the appellant/ accused for offence punishable under Section 366 IPC and under
Section 4 of the POCSO Act. The trial court has convicted them under the said offences.
Aggrieved by the conviction and sentence, the present appeal is filed before the Hon‟ble
High Court.
Remarks: Court observed that the scrutiny of the material placed on record would reveal
that the age of the victim is an important aspect to be decided before considering the
question as to whether there was either an offence under Section 4 of the POCSO Act and
Section 366 IPC. To prove the age, merely the Xerox copy of SSLC marks card is given.
Therefore, it appears to the Court that it would be proper to give an opportunity to the
prosecution to produce the original of Ex. P17 i.e. SSLC marks card and to consider the
same on its production, permit to produce any other supporting evidence and then dispose of
the case in accordance with law. Court set aside the sentence of conviction by forwarding
the case to the trial courts with the order to make every possible attempt to produce the
original of the said documentation.
 Santhosa v. State327
Facts: The father of the victim girl on 10-1-2014 explains that his daughter named Rachna
did not return from the school. After the inquiry, it comes to know that Sandeep (Accused-1)
has kidnapped her. On the basis of the said complaint, firstly, the case was registered against
Sandeep for the alleged offences punishable under Section 366A of IPC, but, subsequently,
by filing the remand application Accused 2 & 3 were also included in the case and the
alleged offence under Section 376 read with Section 34 of IPC and also under Sections 3 and
4 of the POCSO Act were added in the case. The two petition lies before the competent
court regarding the Bail of A-1 & Anticipatory Bail for A-2 & 3
326
MANU/KA/127 3/2015 A.S. PACHHAPURE, J. On 22.10.2013
327
2014 (3) KarLJ 251 BUDIHAL R.B., J.
219
Remarks: Court looked into the material placed on record and held that as on the date of the
alleged incident, she was at the age of 13 years. Therefore, the contention of the learned
Counsel for the petitioner that there was a free volition of girl and both the petitioner and the
victim girl married each other with their free will was rejected by the Court. Seeing the
circumstances in the case and the gravity of the offences, the court rejected the bail
application of A-1. But the anticipatory bail of A-2 & 3 was allowed on following
conditions.
 Vijaykumar v. The State of Karnataka328

Facts: The petitioner has been working in the Girls Hostel attached to the Kittur Rani
Chennamma Residential School and he has been ill-treating, harassing and sexually
exploiting the girl students in the said Institution. Another accused Smt. Jyothi (A2) has
been giving assistance to the said person in order to facilitate the petitioner. The Principal of
Kittur Rani Chennamma School, Almel has lodged an FIR for such an act. The Police have
investigated the matter and submitted the charge sheet. They have recorded the statements of
the girl students, Head Master, and others during the course of the investigation. The petition
is filed before this Court by A-1 for grant of bail on the ground of parity as A-2 has been
granted bail by the Court.
Remarks: In the instant case, the court observed that none of the girls have stated as to
whether any one of them has been exploited by anybody. Every student has stated that some
students were called by the petitioner and he used to exploit her every day. No one in this
case directly stated about the facts like who was the girl is abused by them, or related to it,
although everyone in their statement stated that exploitation is done in the hostel. Therefore
on the basis of lack of strong reasons, the court has not rejected the bail application and held
that the petitioner is entitled to be enlarged on bail.
 Siddu v. State of Karnataka and Ors.329

Facts: Petitioner (whose age is in question before the court) is alleged to have ravished the
victim girl aged six years. The allegation against the accused is a penetrative sexual assault
against the victim, therefore, the police have registered a case for the offences-punishable
under Sections 376(F), 506 of IPC and also under Section 6 of the POCSO Act, 2012 When
the accused has approached the Sessions Court for grant of bail during investigation, the
learned Sessions Judge has referred the accused to Juvenile Justice Board holding him as a
minor. Further, JJB again referred the matter to Session Court for determining age.
328
MANU/KA/044 3/2015 K.N. PHANEENDRA, J.
329
MANU/KA/086 5/2015 K.N. PHANEENDRA, J.
220
Remarks: Interpretation of Section 34 of the POCSO Act is done by the court in this
pertinent case. The court said that the main object of considering the age of the accused
under Section 34 of the POCSO Act 2012 is to decide, which the proper Court is to try the
accused and also sentence him. If the accused is held to be less than 18 years and is a
Juvenile, the learned Sessions Judge will lose his power to conduct a trial and the Juvenile
Justice Board alone is competent authority to try and dispose of the case, in accordance with
the said special enactment. Therefore, it is incumbent upon the learned Sessions Judge, who
is competent, to pass appropriate order under Section 34 of the POCSO Act, 2012 to pass an
order deciding whether the accused is a Juvenile' or he has crossed the age of 18 years in
order to try him before the Sessions Court. Even, if there is any doubt with regard to the age
of the accused and the Court requires some more evidence to resolve the dispute, it can take
such evidence and on the of that evidence, it has to decide the age of the Juvenile and
thereafter only, the Court has to proceed with the merits of the case. The Petition to set aside
the order of Session Court was allowed by the Hon‟ble Karnataka High Court.
 Bhagwan v. State of Rajasthan330

Facts: The present revision petition has been filed by the petitioner through his natural
guardian - mother Nosar under Sec. 53 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 challenging the order Dt. 20.10.2014 passed by the learned Sessions
Judge, Bhilwara for the release of accused. The prosecutrix and the accused are both of the
same age group. They were both intimate and eloped with each other as a result of their
affairs. No documentary evidence was collected during the investigation to prove the age of
the girl. As per the medical examination, the age range is between the age of 16 to 18 years
of age. She herself boarded the motorcycle being driven by the petitioner and went with him
to Bhilwara. From Bhilwara, both accompanied with Radheyshyam went to Maharashtra and
worked together as laborers in the cotton fields for about 5 days.
Remarks: In the present case, Court relied on the material collected by the Investigating
Officer during the investigation which illustrates that the petitioner and the prosecutrix were
having intimate relations from before. It said that the consent of the prosecutrix as being
minor is not relevant. However, the fact remains that the petitioner too was a minor at the
time of the commission of an offence. Also, the Probation Officer's report is not adverse to
the petitioner. Therefore, the court feels that there are valid and justifiable grounds for
directing the release of juvenile to the guardianship of his mother Nosar. Accordingly, the
revision petition succeeds.
330
2015 (1) WLN 12 (Raj.) SANDEEP MEHTA, J.
221
 The State of Rajasthan v. Manoj Pratap Singh 331
Facts: In this case, the victim’s mother named Kamla have a fruit and vegetable cart near
the RK Hospital. Her husband Dharm Das along with her father Madan Lal was also present,
when Manoj Pratap Singh (Accused), who used to reside at Housing Board, came on a
motorcycle to buy fruit. Present at the site was also her young 8-year-old daughter who was
mentally challenged having an IQ of 50% with a permanent physical disability of 70%. The
accused gave her a chocolate and after a period of ten minutes came back to the stall and
took the young daughter away on his motorcycle and went towards Somnath Chauraha.
Police arrested the accused and on interrogation, it was found out that she is dead. As per the
medical report, the deceased had head injuries, injuries on her left eye, and injuries on her
face, neck, chest, hands, stomach, and back as well as injuries on her private parts. After FIR
and investigation, charge-sheet was filed by the police before the competent court and the
case was committed to the court for trial for commission of offenses under Sections 363,
365, 376(2)(f) and Section 302, Indian Penal Code as well as under Section 6 of POCSO
Act. Special Court of POCSO convicted the accused under the above-mentioned offences
and awarded capital punishment to the accused.
Remarks: Court heard the witnesses which stated that the deceased had been subjected to
great cruelty at the time of committing rape and the subsequent murder thereafter. The
doctor who has proved the postmortem report also gave a statement that before the death of
the deceased; she was brutally raped and died on account of head injury. Court referred one
supreme case i.e. C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, where it has been
held that in a case based on circumstantial evidence, the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances must be
conclusive in nature, moreover, all the circumstances should be complete and there should
be no gap left in the chain of evidence. That apart, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and totally inconsistent with
his innocence. The competent court in this respect made a conclusion that there is numerous
circumstantial evidence present to suggest that such heinous offence of rape upon the girl
age 8 years as well as mentally challenged. While granting capital punishment, the court
referred the famous case of Bachan Singh v. State of Punjab & Machhi Singh and Others v.
State of Punjab, where the Supreme Court has held that the normal rule is that the offence of
murder shall be punished with the sentence of life imprisonment. But if the court finds that
the offence is of an exceptionally depraved and heinous character and constitutes, on
331
MANU/RH/085 3/2015 GOVIND MATHUR AND JAISHREE THAKUR, JJ.
222
account of its design and the manner of its execution along with that against the society at
large, for the cure of the civil society court grant the order of death sentence. In the present
case, the court held that the death sentence is justified as the nature of the crime and the
manner in which it has been committed speaks about its uncommonness. The crime speaks
of depravity, degradation and, uncommonality. It is diabolical and barbaric.
 Sharath Chandra Pottala v. Union of India332

Facts: The petitioner, an accused in Sessions Case said to be pending before the Sessions
Judge; Jodhpur District has filed a writ petition seeking some reliefs. Among them, one of
the reliefs is that the Hon'ble Court be pleased to hold the provisions of POCSO ultra vires
the Constitution of India. Ground for challenging are: a) Section 34 of POCSO empowers
the Special Court under POCSO to determine the age of an accused if question arises over
the age of a juvenile accused whereas there is no provision for the accused person to seek
determination of age of victim despite there being a valid and sustainable question and
dispute over the age of victim and such an anomaly in POCSO creates a serious prejudice
for the accused person. b) A Special Court under POCSO would not have jurisdiction to try
an offence when the victim is major and therefore when a dispute or question arises over the
age of victim, there ought to be a procedure for deciding the same and denial of such remedy
to the accused would be serious infringement of the fundamental right of accused under
Arts. 14 & 21 of the Constitution of India.
Remarks: Court after giving considerations to the challenges made to the provisions of
POCSO Act, that the so-called shortcomings, anomaly or lacuna in the procedure as
provided, remain bereft of substance and do not make out a case against the constitutionality
of the enactment. The court said that it remains a trite that a statutory provision could be
challenged as ultra vires on the grounds either on the legislative competence or if the
provision offends any of the provision of the Constitution. Legislative competence is not in
question in the present case; and on the submissions, as made, it is unable to find any of the
constitutional provision being offended by the enactment. It said that POCSO has been
enacted for the very special purpose to protect the children from the Sexual Assaults and
Sexual Harassment etc. The procedure has been provided for recording of the statement of
the child was also the medical examination of the child in Section 27 in accordance with
Section 164- A of Code of Criminal Procedure. Designation of Special Courts for trying the
offences under the Act has been made with the provisions overriding even the other special
332
2014 (2) WLN 410 (Raj.) DINESH MAHESHWARI AND BANWARI LAL SHARMA, JJ.
223
enactments like Information & Technology Act, 2000. The petition was dismissed by the
Hon‟ble Court.
 Niranjan Meena v. State of Rajasthan 333

Facts: Complainant lodged an FIR before Police Station, Mahaveer Nagar, Kota for the
offence under Section 363, 376, 342, 354, 120B IPC and Section 4 and 6 of POCSO Act. On
the basis of FIR, the investigation was commenced. During the investigation, the juvenile
delinquent was arrested by the police. Thereafter an application under Section 12 of the
Juvenile Justice (Care & Protection of Children) Act, 2000 was filed by the father of the
juvenile for custody of the juvenile delinquent. The said application was rejected by the
Juvenile Justice Board, Kota. Against the said order the juvenile delinquent preferred an
appeal before the Court of Sessions Judge, Kota, but the same was also dismissed. Against
the said order, this revision petition has been preferred by Niranjan Meena through his father
Manfool Meena.
Remarks: After hearing the arguments of the counsel for the Juvenile delinquent, Court
held that juvenile Niranjan Meena S/o Shri Manfool Meena deserves to be released on bail.
 Gangadhar Sethy v. State of Orissa334

Facts: On 12.12.2013 at about 3.40 p.m., the accused called the victim who was aged about
five years to his house. The victim accompanied the accused to his house. He committed
rape on the victim for which the victim cried and came out of the house of the accused. At
that time the wife of the informant marked semen stains over the private parts as well as on
the thighs of the victim. She informed him about the incident for which the informant
returned back home and found the incident to be true and accordingly he lodged the FIR.
After completion of the investigation, submitted charge-sheet against the appellant under
Section 376(2)(f) read with Section 4 of the POCSO Act.
Remarks: Court adverted over the age of the victim girl at the time of incident since for
attracting the ingredients of offence under section 4 of POCSO Act which deals with
punishment of penetrative sexual assault, the victim must be a child as per the definition of
"child" provided under section 2(d) of the POCSO Act which indicates that "child" means
any person below the age of eighteen years and also because section 376(2)(i) of the Indian
Penal Code will be attracted only when the rape is committed on a woman when she is under
sixteen years of age. After looking into the evidence the court is satisfied that the victim was
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within the age group of five to seven years and thus one of the ingredients of both the
offences i.e., section 376(2)(i) IPC and section 4 of POCSO Act regarding age is satisfied.
On the question of the offence of rape or penetrative sexual assault on the victim, Court
looked into the medical examination which suggested that the victim was a nubile virgin on
the date of her examination and there was no evidence to corroborate recent or past sexual
intercourse. No injuries present on her person or in or around her private parts. The report
further shows that the victim was a girl child aged about six years and her hymen was intact
and no penetrative test was done during the examination. Court held that none of the
ingredients of Section 3 of the POCSO Act is satisfied in this case. Therefore it cannot be
said that section 4 of the POCSO Act which deals with punishment of penetrative sexual
assault is attracted. Similarly, in absence of any statement of the victim that she was raped
by the appellant or in absence of any corroborative medical evidence, it would not be proper
to convict the appellant under section 376(2) (i) IPC. Court took a view that materials
available on record show the assault has been made on the private parts of the victim and the
ingredients of the offence under section 8 of the POCSO Act is also, clearly made out.
Therefore, the court said that the conviction of the appellant under section 376(2)(i) of IPC
is not sustainable in the eye of law and accordingly the same is set aside and instead he is
convicted under section 354 of IPC. Similarly, the order of conviction of the appellant under
section 4 of the POCSO Act is set aside and instead he is convicted under section 8 of the
POCSO Act.
 Letha J. v. State of Kerala335

Facts : On the basis of some alleged 'media reports in a section of the Press on 12.06.2014',
the Child Welfare Committee, Wayanad (hereinafter referred to as 'the CWC, Wayanad') has
suo motu registered a case on the alleged sexual assault on girl students in Government
Technical High School at Dwaraka, Mananthavady. It is alleged that the 1st accused Anil
Kumar K.V., who was a Draftsman Gr.II of the said School, had sexually assaulted and
harassed the girl students of the said School repeatedly for a long period. On 12.06.2014, the
CWC, Wayanad has directed the head of the institution to submit a detailed report along
with it.
Remarks: Court found out this case as a classic example and a fine illustration to note down
the gross illegalities being committed by the CWCs without knowing as to what they are and
what are their powers are, and as to how recklessly they are exercising powers, which are
not even conferred on them. It seems that in this particular case, the CWC, Wayanad has
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2015 (1) KHC 234 B. KEMAL PASHA, J.
225
crossed over all the limits and has committed gross illegality in passing such an order. It said
that there is no allegation against these petitioners that they have ever committed sexual
assault on a child in that institution. Also, there are no allegations against any of these
petitioners that they have committed any such acts as contemplated under Section 9(l) of the
POCSO Act.
 Ramrahit Singh v. Dhananjoy Singh and Ors.336
Facts: The petitioner on 20.05.2013 went to his native place in Bihar keeping his two minor
sons and the minor daughter aged about 13 years 4 months 16 days (victim girl) in his house.
Taking advantage of his absence his neighbour's son Dhananjoy Singh aka Motu trespassed
into his house in the night and committed rape upon his minor daughter on 21.05.2013,
24.05.2013 and 28.05.2013 under threat to kill her and her minor brothers. In the night on
28.05.2013 around 12.30 hours, the complainant returned home and saw the accused fled
away from his house. His daughter (victim girl) narrated the incident to the petitioner and his
wife. FIR was lodged, the investigation was conducted and charge sheet was submitted
against the accused under Section 6 of the POCSO Act and under Section 506 of the IPC.
The revision petition has been filed in Calcutta High Court praying that the order passed by
the Learned Additional Sessions Judge, 2nd Court, Burdwan dismissing the revision and
affirming the order passed by the Learned Additional Chief Judicial Magistrate, Asansol in
respect of granting of bail of the be quashed and set aside.
Remarks: Court after conjoint reading of the provisions i.e. Section 6, 28, 31, 33 & 42-A of
the Act clearly spells out that cognizance of an offence under the Act without any order of
committal or trial can be taken by the Special Court on a complaint disposing facts, which
constitute such offence, or upon a police report on such facts. Such being the position, where
the Special Court is empowered to take cognizance of the offence on a complaint or police
report on facts constituting an offence under the Act, the Judicial Magistrate has no
jurisdiction to entertain and consider the application for bail moved by any accused
proceeded for an offence under the Act. The Act does not interdict the Magistrate in passing
the order for the first remand of an accused suspected and prosecuted for an offence under
the Act, the accused were produced before him since he is empowered under Section 167 of
the Cr.P.C. to do so. However, he has no jurisdiction to pass any subsequent order of remand
and to entertain or to consider any application of bail filed by such accused and that can only
be done by the Special Court. Therefore, Court reaches a conclusion that there remains no
scope for harboring even the slightest doubt to accept the legal proposition that under the
POCSO Act. In the POCSO Act, special courts are individually vested with all powers to
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226
try, entertain or consider the case or the procedure related to like the bail applications to deal
with any incidental matter thereto including the power of detention and remand of the
accused.
 P. Shanmugavel Raj v. State and Ors.337

Facts : A thirteen year old child was subjected to sexual assault by Accused 1 and a case in
Tirunelveli All Women Police Station was registered by the Inspector of Police for offences
under Sections 376, 109, 506(ii) I.P.C. and Section 5(1)(D) of Immoral Traffic (Prevention)
Act, 1956 and Section 4 of POCSO Act. After completing the investigation, the respondent
police filed a final report against three accused of offences under Section 376(2) I.P.C.,
Section 4 of POCSO Act r/w. 109 I.P.C. and Section 5(1)(d) of Immoral Traffic (Prevention)
Act, 1956. This case was filed before the Sessions Court (Manila Court), Tirunelveli. The
final report was filed directly before the Special Court (Mahila Court), Tirunelveli and it
appears that there was no committal proceeding in view of Section 33(1) of POCSO Act
which empowers the Special Court to take cognizance without committal proceedings.
Thereafter, Accused-1 filed the aforesaid application contending that Tmt. B.R. Mehala is
not competent to conduct the trial before the said Court as she was not appointed under
Section 32(1) of the POCSO Act. The trial Court dismissed the application by a well-
considered order. Aggrieved by which, the first accused is before this Court by way of this
Criminal Revision Petition.
Remarks: According to the Hon‟ble Court, from a bare reading of Section 28 of the
POCSO Act, the Parliament has conferred powers on the State Government to designate a
Court of Sessions to be a Special Court to try the offences under the Act. In other words,
POCSO Act does not empower the State Government to constitute or create new Courts
under the Act, but only empowers the State Government to designate in each District a Court
of Sessions to be a Special Court to try the offences under the Act. By telescoping one
provision into another, that is, by telescoping the proviso to Section 28(1) of POCSO Act
into proviso (a) of Section 25 of the Commissions for Protection of Child Rights Act, 2005
and reading it with G.O.Ms. No. 241, it is crystal clear that the Mahila Court in Tirunelveli
has the jurisdiction to try the offences in question. On the question, whether the Special
Public Prosecutor in the Mahila Court in Tirunelveli is competent to conduct the present
prosecution. Court held that Section 32(1) of the POCSO Act casts a duty upon the State
Government to appoint Special Public Prosecutor for every Special Court for conducting
cases under the provisions of the POCSO Act. The State Government cannot abdicate its
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2015 (1) Crimes 536 (Mad.) P.N. PRAKASH, J.
227
duty by not appointing the sufficient number of Public Prosecutors, because trial under the
POCSO Act should not get unnecessarily delayed on account of the failure of the State
Government to appoint Special Public Prosecutors. Only to achieve this end, Parliament in
its wisdom has cast a statutory duty on the State Government to appoint Special Public
Prosecutors so that prosecutions do not suffer for want of Prosecutors. This does not mean
that the trial before the Mahila Court should be conducted only by a Special Public
Prosecutor appointed under Section 32(1) of the POCSO Act, because Section 31 of the
POCSO Act clearly states that the Special Court shall be deemed to be a Court of Sessions
and the person conducting the prosecution shall be deemed to be a Public Prosecutor.
 K. Muthu Mariappan v. The State338

Facts: In this case, the victim was hardly fifteen years old at the time of occurrence. She was
studying 11th standard and at that time accused became acquainted with her. During the
month of December 2013, on account of her ill-health, she stopped her studies. On
15.02.2014, during night hours, she had gone to a church situated in the village. The accused
met her near the church and expressed his desire to marry her. He also requested her to come
on the next day at 06.00 AM to Mudiyappar Temple in the same village. Accordingly, when
she went there, the accused took her on a bus to Chennai. The accused took her to a rented
house, which was in his occupation. He gave promise to her that he would marry her. On
that day, the accused attempted to have sexual intercourse with her. But, she declined to give
consent. With a view to getting consent from her, the accused told her that since he was
surely going to marry her, there was nothing wrong in having sexual intercourse with him.
By giving such assurance, the accused had repeated sexual intercourse with her. When her
mother could not locate her, she proceeded to the Arumuganeri Police Station to make a
complaint. The case was registered after finding the accused under Section 366(A), 376 of
the Indian Penal Code and Section 4 of the POCSO Act. Trial Court has convicted him
under the said offences. As against the said conviction and sentence, the appellant has come
up with this Criminal Appeal.
Remarks: In order to attract any offence under the provisions of the POCSO Act, it should
be proved by the prosecution that as on the date of the commission of the crime, she was a
child. The term "child" has been defined in Section 2(d) of the Act, which states that the
child means any person below the age of 18 years. Thus, for the purpose of the offence of
kidnapping as well as for any offence under the POCSO Act, the age of victim should be
proved to be below 18 years as on the crucial date. The Court decided as to whether the act
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228
of the accused in having sexual intercourse with the victim would fall under Section 4 or
Section 5(1) r/w Section 6 of the Act. Court looked into the term "penetrative sexual assault"
which has been defined in Section 2(f) of the POCSO Act, which states as follows: --
"penetrative sexual assault has the same meaning as it was mention in Section 3. Whereas
Section 5(l) of the POCSO Act which deals with aggravated penetrative sexual assault reads
as follows: "whoever commits penetrative sexual assault on the child more than once or
repeatedly is said to commit aggravated sexual assault". Court got into the gravity of both
offences i.e. Section 3 & 5 that which of them is a major offence. The aggravated penetrative
sexual assault, which is made out of several particulars, includes a mere penetrative sexual
assault, which is made out of some of those particulars. Therefore, there can be no difficulty
in holding that the Sections 4 and 6 read with Section 5(1) of the POCSO Act are cognate
offences and Section 4 of the POCSO Act is a minor offence to Section 6 r/w Section 5(1) of
the POCSO Act. To bring clarity to the above conclusion, Court also gone into punishment
as provided under these penal provisions. Though the maximum punishment awardable
under Section 4 as well as Section 6 is imprisonment for life with fine, the minimum
punishment provided in Section 4 of the POCSO Act is imprisonment of either description
for a term which shall not be less than seven years, whereas the minimum punishment
provided under Section 6 of the POCSO Act of rigorous imprisonment that is not less than
ten years. The term "imprisonment" under Section 4 of the POCSO Act may be of either
description, viz., either rigorous or simple, whereas under Section 6 of the POCSO Act, the
term imprisonment shall be only rigorous. From these ingredients, it can be noted that in the
matter of punishment also, Section 4 of the POCSO Act is minor to Section 6 of the POCSO
Act. It also hold that the conviction of the appellant under Section 4 of the POCSO Act,
though the appellant stood charged under Section 6 r/w Section 5(1) of the POCSO Act and
there was no charge under Section 4 of the POSCO Act, it is not illegal and so the same is
liable to be confirmed.
 Iqbal v. State of H.P.339

Facts: Present petition is filed under Section 439 of the Code of Criminal Procedure 1973
for grant bail in connection with FIR registered under Sections 363, 366, 376 IPC and under
Section 4 of Protection of Children from Sexual Offences Act 2012 at Police Station Zhakari
District Shimla HP. There is recital in police report that Kalam Singh came in Police Station
along with his wife Sita Devi and filed criminal report that on dated 26.10.2014 at about 9
AM prosecutrix went to stitching center Jeuri and thereafter prosecutrix did not come to her
339
MANU/HP/0180 /2015 PIAR SINGH RANA, J.
229
residential house. As per birth certificate of the prosecutrix the age of the prosecutrix is 16
years and one month. There is recital in police report that petitioner Mohamad Iqbal
kidnapped the prosecutrix at Jammu on the pretext of marriage and has kept the prosecutrix
as his wife and had committed sexual intercourse with her and if the petitioner is released on
bail then petitioner would create obstruction in the trial of the criminal case.
Remarks: There is apprehension in the mind of the Court that if the petitioner is released on
bail at this stage then petitioner will induce and threat the prosecution witness. The court is
of the opinion that it is not expedient in the ends of justice to release the petitioner on bail at
this stage. Hence In view of the above-stated facts bail petition filed under Section 439 of
the Code of Criminal Procedure 1973 is rejected. The observation made hereinabove is
strictly for the purpose of deciding the present bail petition and it shall not affect merits of
the case in any manner. Bail petition was disposed of in the instant case.
 Sachin v. State of H.P.340

Facts: In this case there were FIRs and both are contradictory to each other. It is further
pleaded that as per one FIR occurrence took place at Hotel Monal Mandi and as per other
FIR, occurrence took place in the house of prosecutrix at Dharampur which is approximately
at a distance of 90 Kms. and hence prosecution story did not inspire any confidence. In view
of contradictory statements of both prosecutrix, no offence under IPC and POCSO Act is
made out. It is pleaded that neither identification of accused persons established nor any test
identification parade was conducted.
Remarks: Court is of the opinion that in view of gravity of offence against the applicants
under Section 376D IPC i.e. gang rape and in view of allegations of criminal offence under
Sections 6 and 17 of POCSO Act 2012 i.e. aggravated penetrative sexual assault upon minor
prosecutrix it is not expedient in the ends of justice to release the applicants on bail at this
stage. Court is also of the opinion that if applicants are released on bail at this stage then trial
of case will be adversely affected and there is apprehension in the mind of Court that if
applicants are released at this stage then applicant will induce and threat the prosecution
witnesses At the time of granting bail following factors are considered. (i) Nature and
seriousness of offence (ii) The character of the evidence (iii) Circumstances which are
peculiar to the accused (iv) Possibility of the presence of the accused at the trial or
investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger
interests of the public or the State.
340
MANU/HP/1301 /2014 PIAR SINGH RANA, J.
230
 Sahil Thakur v. State of Himachal Pradesh 341
Facts: In this case, the petitioner and the prosecutrix are studying in one institute. She went
along with the petitioner and they were also accompanied by Rajat, Nitika and the vehicle
belonged to one Harshav Thakur. On 26.4.2015, all four of them stayed at a hotel at Solan
(Oachghat) and then they went to Chandigarh and thereafter stayed in the same room where
the victim is forcibly sexually abused by the accused. The prosecutrix made no grievance but
later on claimed that she had not only been kidnapped but had been offered a drink which
had been laced with some drug, as a result whereof, she remained unconscious and the
petitioner took advantage of this fact and forcibly established physical contact with her. The
petitioner has approached this Court for grant of bail under Section 439 CrPC.
Remarks: Court held that the object of keeping a person in custody is to ensure his
availability to face the trial and to receive the sentence that may be passed. However, this
detention is not supposed to be punitive or preventive. On the basis of the record, it cannot
be said that the petitioner would in any manner impede the course and cause of justice or
that the petitioner may in any manner hamper the free, fair and full investigation.
Accordingly, the petition is allowed and the petitioner is ordered to be released on bail on
the following terms and conditions: (i) The petitioner shall furnish bail bonds in the sum of `
50,000/- with one surety of the like amount to the satisfaction of any Judicial Magistrate 1st
Class, stationed at Rohru, District Shimla, H.P.; (ii) the petitioner shall fully co-operate with
the investigation as and when required by the Investigating Agency; (iii) the petitioner shall
not, directly or indirectly, make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or
to any police officer; (iv) the petitioner shall not tamper with the prosecution evidence or
threaten the witnesses; (v) the petitioner shall not leave the country without prior permission
of the Court; (vi) the petitioner shall not misuse his liberty in any manner.
 Pranil Gupta v. State of Sikkim342

Facts: The incident took place between 03.05.2013 to 06.05.2013. The Victim aged about
14 years, a student of "Rimbi School" in West Sikkim was known to the Appellant, Pranil
Gupta, a truck driver working at the construction site. He was living in a room on the ground
floor of one "Hotel Mt. Simvo" at Pelling, West Sikkim. On 03.05.2013 the Victim went to
Pelling to purchase a birthday cake taking along with her friend. The Victim, at Pelling,
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342
MANU/SI/0035/ 2015 MEENAKSHI MADAN RAI, J.
231
called the Appellant, he then directed the Victim to go to Pelling School ground, where she
would be met by his sister-in-law. Following the instructions, the Victim and her friend went
to the designated place where they met the lady and were taken to her room, also situated on
the ground floor of Hotel Mt. Simvo. The Appellant, on reaching the place asked the
Victim's friend to return home while he kept the Victim in his room and had sexual relations
with her. Victim’s family reported the case to police, then the learned Trial Court finding
prima facie materials against the Appellant framed charges under Section 4 of the POCSO
Act, 2012 and under Section 363 of the Indian Penal Code, 1860 and convicted him under
the same offences. Appeal against the judgment of special court has been made in this
Hon’ble Court.
Remarks: Rejecting the contention of appellant that it was a consensual act and they were
having a love affair, the Court looked into Section 375 of IPC, which indicates that when the
offence of rape has been committed, the consent of the victim under 18 years of age is
irrelevant. Similarly, for an offence under the POCSO Act, 2012 which is a more stringent
Act, the consent of the child would be of no consequence, as she is protected by the
provisions of law. Court agrees that the Victim herself went along with her friend to Pelling
to meet the accused and she stayed with the accused with her own will. But for an offence
under Section 3 of the POCSO Act, 2012 the consent of a minor is irrelevant. It must also be
borne in mind that Section 30(2) of the POCSO Act, 2012 requires that a fact is stated to be
proved for the purposes of Section 30(1), only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its existence is established by a
preponderance of probability. It has also been clarified that "Culpable Mental State" includes
intention, motive, knowledge of the fact and the belief in or reason to believe a fact. Thus,
mere denial of the offence U/S 313 of the CrPC. by the accused will not suffice, he has to
establish lack of mens rea beyond a reasonable doubt. Lastly, Hon‟ble High Court agreeing
with the Judgment of the Learned Trial Court upheld the conviction of the accused.
 State (Govt. of NCT of Delhi) v. Mullah Muzib343

Facts: Victim was working at the tools shop of him, maternal uncle. It was alleged that
about 6-7 months ago, when he was sleeping in the parking, accused Mullah Muzib, who ran
puncture shop, took him below a tree and asked him to sleep underneath a tirpal, thereafter,
he put off his pant and when he refused, accused threatened him by stating to remain laid
silently and thereafter he put off his pant and half pant of the victim and inserted his penis in
his anus, he felt pain. Thereafter, accused asked him not to disclose the incident, anyone,
343
MANU/DE/0383 /2015 G.S. SISTANI AND SANGITA DHINGRA SEHGAL, JJ.
232
otherwise he would kill him. Accused repeated the same acts 2-3 times after the first
incident. It was further alleged that on October 27, 2013 at about 10 PM when he went to
public toilet to ease himself, accused followed him and entered the toilet and thereafter he
bolted the door from inside. It was alleged that accused put off his pant and thereafter
committed same act in the same manner in which he committed earlier. Victim informed his
maternal uncle and Tausif at whose shop he was working, accordingly, they took him to the
police station. FIR for the offence punishable under Section 377 of IPC read with Section 6
& 10 of POCSO Act was got registered. Special Court acquitted the accused and hence
criminal leave petition has been filed against the said order.
Remarks: Court held that Prosecution has set up a case that accused had committed carnal
intercourse with the victim several times. The medical report did not find any external injury
on the body of the patient. On examination, it was clear that prosecution has failed to
produce any medical evidence which may even suggest that the victim was sexually
assaulted. Also, no injury was found at the male organ of the accused. The mere fact that
accused was found capable to do intercourse, in the absence of any other evidence, is itself
not sufficient to draw an adverse inference against the accused. Court referred to some case
laws, like in Phool Singh v. State 2011 (3) JCC 2235, it was held that the prosecution case
did not corroborate with the medical evidence. Hence the conviction of the accused was set
aside. In this case, the competent court, suggest the view of the earlier case and the
explanation of the trial court, that in competency in providing the corroborating evidence
against the accused will be led the case in the acquittal of the accused.
 Jongi v. State 2014 344

Facts: It was winter when the accused called the victim for giving potli about 2-3 months
back. She went to play near Shivaji Stadium when the accused came to her and asked to
accompany him for getting potli back. He took her to gali, there he kissed her and also hurt
her on the cheek with a small knife and asked to take off her underwear. Further, the accused
had taken off her blouse and had caressed her chest. When she cried and shouted. The
accused was apprehended by public persons and he then ran away. Based on the report, the
trial Court convicted him under Section 354 of IPC and Section 9 of POCSO Act, 2012.
Against that order, the appeal is preferred.
Remarks: Looking into the facts and circumstances and the material emerging on record,
Court found out that the act of the Appellant i.e. lifting shirt of the child victim, can be
termed as a case of sexual harassment. Thus, the offence proved against the Appellant is
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(4) JCC 2922 PRATIBHA RANI, J.
233
under Section 11 of POCSO Act, which is punishable under Section 12 of the said Act and
provides imprisonment for the term that may extend to three years and also liable for the
fine.
 Chandrika Prasad v. State345

Facts: In the house No. 16/1069 E Block, Khalsa Nagar, Tank Road, Karol Bagh, Delhi, 'X'
(assumed name), aged 10 years, was sexually assaulted by the appellant and he outraged her
modesty. The incident was reported to the police. After completion of investigation, a
charge-sheet was filed against him in the court. Trial Court convicted him. Aggrieved by a
judgment of trial court where the accused was held guilty for committing offences under
Sections 354 IPC and Section 10 of POCSO Act, an appeal was preferred in the instant case.
Remarks: From the evidence placed before the Court, it emerges that in the absence of her
uncle who had gone to his native village, 'X' used to visit the shop after return from school to
enable his father to go to the house to take lunch. The accused who worked as a security
guard in a godown situated in front of the shop took advantage of the absence of 'X's father
and touched her various body parts in the shop. He abused the child for about 15 to 20 days
before the incident. On a day when 'X' declined to go to the shop and on inquiry for her
reluctance to go, she revealed the incident. In such condition, the Hon’ble High Court
explained the verdict of the trial court was proper or based on the fair reasoning, and there is
no need of interference in it.
Vinod Kumar v. State346

Facts: The Appellant was bed roll boy in Brahmaputra Mail in the Compartment in which
the Complainant along with her daughter was travelling on berth No.36 and 42. At about
4.00 am, while she was sleeping, she felt that somebody was touching her body. She got up
and tried to awake her mother by calling her and shaking her but her mother was in deep
sleep. Thereafter, complainant no.1 left for the washroom and the appellant followed her to
the washroom and tried to stop her in the way. The complainant came back running towards
her birth and started crying when her mother woke up. This resulted in the apprehension of
the Appellant and registration of FIR against him. An appeal has been filed by the Appellant
Vinod Kumar impugning his conviction under Section 10 of Protection of Children from
Sexual Offence Act, 2012 and has been sentenced to undergo RI for five years with fine of
Rs.2000/- and in default of payment of fine, to undergo SI for 15 days for committing the
offence.
345
MANU/DE/0712 /2015 S.P. GARG, J.
346
MANU/DE/3515 /2014 PRATIBHA RANI, J.
234
Remarks: The court in the present case observed that any question that involves “sexual
intent” shall be a question of fact. Section 9 of the POCSO Act deals with aggravated sexual
assault, which is punishable under Section 10 of the said act. In order to ascertain as to under
which Section the act committed by the Appellant falls, it is necessary to refer to Section 11
of the said Act which particularly states that,-A person is said to commit sexual harassment
upon a child when such person with sexual intent, (iv) repeatedly or constantly follows or
watches or contacts a child in a direct way or through any other method like digital or other
that.
 State v. Sonu Kumar Yadav 347

Facts: Smt.Yashoda, the Complainant along with her daughter aged about 6 years was
purchasing spices from Gupta Masala Wala. When she was busy shopping, at about 8.30
pm, one boy came and pressed the mouth of her daughter and started running along with her.
She happened to see him and raised an alarm. The public persons caught that boy and on
inquiry, the name of that boy was revealed as Sonu Kumar Yadav, resident of Gulabi Bagh
Patri, who had been given beating by the public persons. Somebody had informed the PCR
and Sonu Kumar Yadav had been handed over to the police. The shopkeeper Sh. Chetan
stated that he knew the Complainant as she used to visit his shop for purchasing items but he
denied any incident having taken place on 14.06.2013 or any hue and cry being heard by
him.
Remarks: Legal position is well settled that the Appellate Court should be very slow in
setting aside a judgment of acquittal particularly in a case where two views are possible.
Trial court judgment cannot be set aside merely because the Appellate Court's view is more
probable. It is not justified the act of the Appellate Court to set aside the order of the trial
court, except there was a clear sign of direct evidence on record that the judgment of the trial
court is either 'perverse' or wholly unsustainable in law. In the case of State of U.P. vs.
Nandu Vishwakarma, it was observed that 'when on the basis of the evidence on record two
views could be taken - one in favor of the accused and the other against the accused - the one
favoring the accused should always be accepted'.
 State v. Shambhu 2015 348
347
MANU/DE/3141 /2014 PRATIBHA RANI, J.
348
(1) JCC 611 PRADEEP NANDRAJOG AND MUKTA GUPTA, JJ.
235
Facts: The prosecutrix who came to live with her maternal grandfather in village Issapur,
Delhi went missing on December 30, 2012. When despite search the maternal grandfather
could not trace her missing report was lodged on December 31, 2012, resulting in the
institution of FIR under Section 363 IPC. Efforts were made to trace the prosecutrix.
Subsequently on information received it was revealed that the prosecutrix was at
Mohangarh, Jaisalmer, Rajasthan with Shambhu the respondent. She was recovered from
hotel Sangam, Jaisalmer, Rajasthan on January 04, 2013 and both the prosecutrix and
Shambhu were brought to Delhi on January 05, 2013. Statement of the prosecutrix was
recorded wherein she stated that she was in love with the respondent and voluntarily
accompanied him. They first went to Faridabad and then to Jaisalmer. The respondent had
committed vaginal and anal intercourse with her against her consent. Thus, Sections 376 and
377 IPC were also added and the prosecutrix was medically examined. Her statement was
recorded under Section 164 Cr.P.C. wherein she stated that she was having friendship with
the respondent and had gone to stay with him of her own free will and both of them had anal
intercourse only once and that was also with her consent and without any force. The MLC of
the prosecutrix revealed that her hymen was intact and no injury was seen in Vulva, Labia
majora, Labia majora, Perennial region, and anal region. All the regions were found normal
and without any bleeding, scar or bite marks.
Remarks: Indubitably a victim of rape is not an accomplice and conviction can be based on
her sole testimony without any corroboration if the same inspires confidence. But the MLC
and the FSL report do not corroborate the version of the prosecutrix in the recent case there
must be some additional evidence needed to consider the story of the complainant is
probably true, and it is reasonable to act upon it.
 State v. Pulkit Choudhary and Ors. 349

Facts: On September 15, 2012 the prosecutrix had a quarrel with her parents. She left her
house and stayed for a few days with her friends. She contacted her friend Amit on
Facebook and stayed with him for two days. Thereafter Amit sent her to his friend's place
whose name was Pulkit. Initially Pulkit was not aware that she had left her home on her own
but when he came to know about this, he committed rape on her. As parents of Pulkit were
expected to come back, he asked her to stay at another place for two-three days. He told her
that he had taken her video film and in case she did not obey, the same will be put on the
internet. Pulkit stated to her that he was an Inspector in Delhi Police and would implicate her
in a false case. Thereafter again she stayed at the house of Ankit. However, she was picked
349
201(1) JCC 610 PRADEEP NANDRAJOG AND MUKTA GUPTA, JJ.
236
up by the Police on November 27, 2012. Even on cross-examination, she failed to identify
any of the respondents as the accused persons who committed rape on her on different
occasions. During the cross-examination, nothing has been highlighted of the prosecutrix
that she was deposing under the fear of the respondents or any other material placed to
connect the respondents to the offences alleged. Therefore an appeal has been files on the
basis that the acquittal was unjustified and a perverse order has been passed by the learned
Trial Court which is required to be rectified by this Court.
Remarks: The Court observed that the prosecutrix of a sex offence cannot be put on a par
with an accomplice, because she is also a victim. The evidence act accomplish that the
evidence of the victim is only considered when it was corroborated by the material facts.
The court must check the entire if a but in the relation of this situation, that in totality, it was
assumed that she has any strong motive to falsely convict the person charged here and record
the same.
 State of NCT of Delhi v. Rashid350

Facts :The complainant, father of the victim on 16.12.2012 he had sent his nephew aged
about 9 years and his daughter aged about 6 years to the opposite block to deliver food to his
sister and at about 10:45 PM his nephew returned home and informed the complainant that
his daughter was caught by one boy in the stairs who pulled down her pajama and was doing
'Chera Khani' with her. The complainant rushed downstairs and apprehended the said boy at
the distance of about 200mts. A call was made to the PCR, FIR was got registered under
section 376 IPC read with section 4 of the POCSO Act, victim was medically examined and
accused was arrested. On completion of the investigation, charge sheet was filed. Thereafter
charges against the accused were framed under section 376(2) (f) IPC read with Section 4
and 6 of the POCSO Act.
Remarks: The Hon‟ble judge observed that the rules regarding appreciation of evidence,
the Court has to keep in mind certain significant principles of law under the Indian Criminal
Jurisprudence, i.e. right to fair trial and presumption of innocence, which are the twin
essentials of administration of criminal justice. The Apex Court in Govindaraju @ Govinda
Vs. State & Anr. Court has discussed A person is presumed to be innocent till proven guilty
and once held to be not guilty of a criminal charge, he enjoys the benefits of such
presumption which could be interfered with by the courts only for compelling reasons and
not merely because another view was possible on the appreciation of evidence. The element
of perversity should be traceable in the findings recorded by the Court, either of law or of
350
MANU/DE/0352 /2015 G.S. SISTANI AND SANGITA DHINGRA SEHGAL, JJ.
237
appreciation of evidence. Further in case if there is no compliance of section 157 of Code of
Criminal Procedure and there is an inordinate delay in recording the statements of witnesses
u/s 161 of Code of Criminal Procedure proof should be established beyond reasonable
doubt.
 Basanti v. State 2014351

Facts: Prosecutrix got married to a person namely Imran about three months prior to this
incident. She stayed with her in-laws for about two months and on 21.04.2014 she returned
to her parental home. Since her parents wanted her to be sent to her matrimonial home, she
left her parental home about three days prior to this occurrence. The Complainant further
stated that during the day time, she used to spend time in Ashok Park and at night, she used
to sleep at 'Mazaar' of ''Peer Baba'. The Applicant who is seeking bail in the instant case is a
lady named Basanti. She met prosecutrix near the bank of river Yamuna. Basanti questioned
her as to the nature of the job she was doing. On being informed that she was doing nothing,
Basanti took her to a newly constructed house in Toba Colony on the pretext of providing
the job. Three boys were present there and she had seen them earlier also. There they had
cold drinks. The remaining allegations regarding outraging her modesty and committing
rape on her have been made against the co-accused persons. Allegations of abetment to
commit rape have been leveled against her in the FIR registered under Section 376-D/109
IPC & under Section 6 of POCSO Act, PS New Friends Colony, Delhi and therefore
applicant is seeking bail in the instant case by filing an application under Section 439 CrPC.
Remarks: Considering all the facts and circumstances of the case, the court found it to be a
fit case to enlarge the Applicant on bail. Accordingly, it directed that Applicant is released
on bail on her furnishing personal bond in the sum of Rs. 25,000/- with one local surety in
the like amount to the satisfaction of learned Trial Court, subject to the condition that the
Applicant shall not try to contact the Complainant in any manner whatsoever.
 Juyal v. State 2014 352

Facts: On 16th July 2013 at about 3.30 p.m. her daughter who was aged about 15 years and
a student of 10th standard, left home for going to the tuition and had not returned thereafter.
FIR was registered on the statement of Smt. Taslima, mother of the victim under Sections
363/367 of IPC & Section 4 POCSO Act. During the investigation, when she was produced
before the M.M for recording her statement, she stated that she was in love with Faizan
(Petitioner). She had a physical relationship with the above-named person of her own free
351
352
238
will and was pregnant having a pregnancy of 45 days. She also stated before the learned
M.M. that she left the house of her own and though the accused wanted to drop her back to
her house on the same day, she insisted to stay with him and the charged person drop her
next day near her house. She was categorical in making a statement that nobody had
kidnapped or enticed her away. The petition has been filed for seeking bail in the instant
case.
Remarks: In the present case, Court observed that when statement of the victim was
recorded under Section 161 CrPC, she named her Jeeja, the petitioner, to be the person with
whom she had a physical relationship and became pregnant. On the other hand, she didn’t
name the petitioner, while giving the statement under section 164 of Crpc. After looking into
the entire facts and circumstances, court said that it would be a subject matter of trial and as
to which of her statement is correct and looking into the nature of the allegations made
against the petitioner, Court directed that the petitioner be released on bail subject to his
furnishing a personal bond of rupees 25,000, with the one surety, that the amount to be
satisfied in the trial courts.
 Ravinder Kumar v. State353

Facts: Petitioner has filed the petition in the instant case to quash the FIR which was
registered under Sections 354/451/323/34 I.P.C. & Section 12 of POCSO Act on the ground
that parties have settled the matter. Petitioner itself or behalf of the victim the minor one
declared that the issue between the parties is resolved, according to the settlement agreement
on the date 31st March 2014. The settlement has been arrived of their own free will, volition,
without coercion and seeing the overall welfare and interest of the minor. As the Petitioner
has undertaken to abide by the terms of settlement, Victim‟s father and the complainant do
not wish to pursue the abovementioned FIR and the proceedings pursuant thereto.
Remarks: Court held that In view of the fact that the parties have amicably resolved the
differences of their own free will, volition and without any coercion and no useful purpose
will be served in continuance of the proceedings, rather the same would create further
acrimony between them, it would be in the interest of justice to quash the abovementioned
FIR and the proceedings pursuant thereto. There is no legal impediment in quashing the FIR
in question.
 Sachinder v. State 354
353
2014 (2) JCC 1210 MUKTA GUPTA, J.
354
2015 (2) JCC 794 SUNITA GUPTA, J.
239
Facts: An application is filed by the accused (appellant) under 389 CrPC seeking suspension
of his sentence during the pendency of the appeal. He was charged under Section
323/354/376 of IPC and 4/6/8/12 of POCSO Act. The appellant was convicted under Section
6 & 8 of the POCSO Act by the special Court but it is argued that based on the evidence;
these sections are not at all attracted.
Remarks: In the instant case, Court agrees with the submissions of the learned counsel for
the appellant that there was no allegation of inserting fingers by the appellant in her vagina
when the statement of the prosecutrix was recorded under Section 164 CrPC. The court
looks into the Statement of PW12-Dr. Nivedita Raizada who deposed that she did not find
any evidence of finger having been inserted as she did not find any redness or rashes or
marks on the vaginal part. Based on this Facts and Circumstance, the Court held that the
sentence of the appellant is suspended during the pendency of the appeal subject to his
depositing fine.
 The State of Maharashtra and Ors. v. Viran Gyanlal Rajput and Ors.355
Facts: This is an appeal in the Bombay High Court against the judgment and order of
Additional Sessions Judge who convicted the accused for the offence punishable under
Section 302 of the IPC and sentenced him to capital punishment of death. By the very same
Judgment and Order, accused was also convicted under Section 366 IPC, Sections 10 and 4
of the POCSO Act, 2012. The Facts in the present case are like this that on 17/10/2012;
victim girl aged about 13 ½ year old had been to her school. In the evening, she did not
return home. On 17/10/2012 in the evening, PW4 saw victim girl coming alone and saw one
unknown person wearing a red t-shirt following the victim girl. During interrogation, he had
shown the place where the dead body of victim girl was found lying there in naked condition
with odhani/scarf tied around the neck. Postmortem report found that deceased was forcibly
subjected to sexual intercourse. The samples of pubic hair, semen, and blood of the accused
were also collected by the Medical Officer.
Remarks: Court in the instant case held that the offence committed by the accused had not
been committed on the spur of moment. It was preplanned. Accused took away the victim
girl to a secluded place in the jungle area. Even villagers had not thought of searching the
place untill the accused led them to the spot. Accused committed the offence in order to
satisfy his lust. He forcibly raped 13 ½ year old defenseless schools going girl and
eliminated her life which is the ultimate insult of womanhood. The subsequent conduct of
the accused indicates that he had felt no remorse. After commissioning of crime, he was
355
2015 (2) BomCR (Cri) 102 V.K. TAHILRAMANI AND I.K. JAIN, JJ.
240
found coolly wandering in the village. He thought that victim might expose him before
others so buried her body in a naked condition in a ditch and covered the place with grass
and mud. The modus operandi of the accused clearly shows that he would be a menace to
the society and there is no possibility of the accused being reformed. Considering the nature
of the offence, the manner in which it was committed and upon evaluating the aggravating
and mitigating circumstances, according to the Court, this is a case which falls in the
category of rarest of rare case. Therefore, no infirmity found in impugned order and capital
punishment was rightly imposed. Hence, the appeal was dismissed.
 Jagar Singh v. State of H.P.356

Facts: The petition under Section 438 of the CrPC 1973 has been filed by the accused of
grant of anticipatory bail in connection with the case where he is charged under Section
354(A) of IPC and Section 8 of POCSO Act 2012. There is a recital in the police report that
on dated 11.7.2014 at 7 PM minor prosecutrix went to urinate in the field and immediately
accused-applicant came from behind and caught the arm of the minor prosecutrix and
pushed her. He told the minor prosecutrix that if she would surrender voluntarily to the
sexual desire of applicant then he would not harass the minor prosecutrix. Then accused
pressed the breast of the minor prosecutrix and also touched the body of minor prosecutrix
from top to bottom and also inflicted teeth bite injury upon the cheeks of the minor
prosecutrix. There is a further recital in the police report that thereafter accused removed
salwar of minor prosecutrix and thereafter, minor prosecutrix cried in loud voice and on
hearing cries of minor prosecutrix maternal grandfather of minor prosecutrix came out.
Remarks: The High Court said that as per Section 30 of the Protection of Children from
Sexual Offences Act 2012 there is a presumption of culpable mental state and burden to
prove it lies upon the accused, that he has not of that mental state of. It held that the fact of
whether accused had no such mental state or not can be decided at this stage. The same fact
will be decided on merits after giving the due opportunity to both the parties to lead
evidence in support of their case. As per Section 42-A of Protection of Children from Sexual
Offences Act 2012 provisions of POCSO Act shall have an overriding effect on the
provisions of other law to the extent of the inconsistency. Interpretation of Section 7 of
POCSO Contention was made that as per Section 7 of the Protection of Children from
Sexual Offences Act 2012 sexual intent to touch the naked vagina, naked penis, naked anus
or naked breast of the child is essential in order to frame charge against the accused. Court
356
2015 (2) RCR (Criminal) 320 PIAR SINGH RANA, J.
241
has carefully perused Sections 7 and 8 of Protection of Children from Sexual Offences Act
2012. The court is of the opinion that there is no recital in Section 7 of POCSO Act that
touches with sexual intent should be to the naked vagina, naked penis, naked anus or naked
breast of the child. The court is of the opinion that even touches to the vagina, penis, anus or
breast of the minor child when a minor child has worn clothes is sufficient to attract Sections
7 and 8 of the Protection of Children from Sexual Offences Act 2012. The word naked is
missing in Section 7 of Protection of Children from Sexual Offences Act 2012 and it is well-
settled law that Protection of Children from Sexual Offences Act, 2012 is a special Act
enacted for the protection of minors children and it is well-settled law that Court is the
guardian of minors and it is also well settled law that when two interpretations are possible
then interpretation favorable to the minors should be adopted by Court in the ends of justice.
Court held that it is not expedient in the ends of justice to release the applicant on
anticipatory bail. Hence anticipatory bail application filed by the applicant is rejected.
Cases collected through the Internet
 A 60-year-old man was on Tuesday arrested for allegedly raping a nine-year-old girl357
A crime is committed by the 60 years old man on the victim aged 9 years. A complaint was
filed by the victim father, in the nearest police station alleging the accused. The crime is
done when the victim goes to the accused house to meet his daughter and then nobody was
there. A case has been registered in the matter under relevant sections of IPC and the
POCSO Act, 2012, police said.
 Minor Girl Allegedly Raped by Classmate Near Her House in Bhopal358

Bhopal:
In this case, an 8 years girl is raped by her class mat along with another boy who is
unidentified by the victim, near her house. The complaint is filled by the parent after getting
into the situation. A Medical examination is to be done of the victim and the after getting
the report a special investigation team is formed to inquire into the matter headed by the
woman police officer.
To interrogate the boy and his family, though no arrest were made in connection of this
because the accused is also a minor child. Charges were made under IPC section 376 and the
Protection of Children from Sexual Offences (POCSO) Act.
357
https://www.news18.com/news/india/60-yr-old-man-arrested-for-allegedly-raping-9-yr-old-girl-626046.html
Updated:July 24, 2013, 4:29 AM IST last accessed on 2019
358
https://www.news18.com/news/india/minor-girl-allegedly-raped-by-classmate-near-her-house-in-bhopal-
1985187.Updated:December 27, 2018, 9:27 PM IST last accessed 0n 2019
242
 Maharashtra Man Held for Repeatedly Raping Daughter for Over a Year359
Thane:
In this case, a 16 years old girl was raped by her father for more than a year. One day she
gets the courage and filled a complaint against her father age 50 years. In this compliant, she
explained that she was sexually assaulted by her father while the other family member is
sleeping. He forces her to take some intoxicate medicine along with that choke her mouth
with a cloth. If she resists or reveals the situation to anyone than a threat is given that he will
kill his mother and other siblings. The said compliant was lodge under section IPC sections
376 (rape), 506 (criminal intimidation) and the Protection of Children from Sexual Offences
(Pocso) Act.
 Madrasa Cleric Arrested for Alleged Role in Rape of 11-year-old in Ghaziabad360

New Delhi:
In the present case, 11 years of a minor girl raped by a 17 years old boy, in a madras where
the cleric of the madras is known about the occurrence of crime.
A missing compliant was filled by the victim family and girl was rescued from the Madrasa,
and after the medical examination, it was confirmed that the rape is done and the accused is
a detained. A case was registered under POCSO (Protection of Children from Sexual
Offences Act) and the boy was sent to a juvenile home. But the cleric was not arrested The
victim had recorded her statement in front of a magistrate. She said the juvenile had taken
her to the madrasa to meet his friends. The girl's parents had also been demanding the arrest
of the cleric as they alleged that the man was aware about the crime.
 Bihar Man Who Was Caught Flashing His Private Parts at a 5-Year-Old Girl Booked
Under POCSO361
Mumbai:
In this case, a video clip is made by an alert citizen in connection with sexual activity with
children. On having the clip police found the family of victim and there after shows them the
clip. On having that the family files a complaint against accused having an age of 52 years,
359
https://www.news18.com/news/india/maharashtra-man-held-for-repeatedly-raping-daughter-for-over-a-year-
1934051.Updated:November 9, 2018, 12:48 PM IST
360
https://www.news18.com/news/india/madrasa-cleric-arrested-for-alleged-role-in-rape-of-11-year-old-in-ghaziabad-
1732123.htmlUpdated:April 27, 2018, 11:02 PM IST
361
Vinaya Deshpande | CNN-News18, https://www.news18.com/news/india/bihar-man-who-was-caught-flashing-his-
private-parts-at-a-5-year-old-girl-booked-under-pocso-1903007.Updated:October 9, 2018, 9:35 AM IST
243
and charges were labeled against him under Sections 354 (A)(1)(3), 376 (I) (J) of IPC and
Sections 4, 8, 12 of POCSO.
In the clip the accused is showing the private part of his body to the girl along with that
forcibly pulls her near him while arousing in the garden near the children.
 OPINION | The Bihar Shelter Home Case Where 29 Girls Were Raped Should Be
Treated Like National Calamity362
Muzaffarpur :
In the last few days, the most sordid, reprehensible and nail-biting crime committed for
years on 44 hapless and helpless young girls (7-18 years of age) has become breaking news.
No one has reported that dozen of them were mentally ill while most others were
traumatized to the core. Words fail to describe this inhuman crime. The girls who lived in
the government children's home (Balika Grih) on Sahu Road in Muzaffarpur in Bihar were
drugged, raped and physically assaulted on a daily basis. Their private parts were burnt with
cigarette butts. It’s perhaps important to say here that there can be no consensual sex with
minors. I will return to this sad commentary on the state of the nation a bit later.
 Man Sentenced to Death for Sodomising, Murdering 4-Year-Old363

Ahmedabad:
In this case, 24 years old man is booked under the POCSO Act, for committing an offence
on the minor boy aged 4 years of age. In the occurrence of the crime he severely sexually
assaulted and suffocates him till he dies along with that leave the dead body in the outskirts
of the village.
A benchmark judgment is passed by the competent court while judging the case; charges
were framed for murder, sodomy, and under sections of the POCSO Act. The judge, in his
order on observed that the crime was extremely heinous and deserved the strictest
punishment also the medical and other evidence presented by the prosecution adequately
established the crime. Accused was an unemployed youth of the same village and knew the
victim well. The unsuspecting child, who knew the culprit, was easily lured by the accused
when he was offered ice cream.
 Within 6 Days of Crime, 14-Year-Old Convicted of Rape in Madhya Pradesh364
362
Akhileshwar Sahay | CNN-News18, https://www.news18.com/news/opinion/opinion-the-bihar-shelter-home-case-
where-29-girls-were-raped-should-be-treated-like-national-calamity-1824525.html,Updated:July 26, 2018, 4:37 PM IST
363
MeghdootSharon|CNN-News18,https://www.news18.com/news/india/man-sentenced-to-death-for-sodomising-
murdering-4-year-old-1730847.html,Updated:April 26, 2018, 6:50 PM IST
244
Ujjain:
Within a week of the crime, a local court here convicted a teen for raping a four-year-old
girl. The boy has been sent to two years in the juvenile home. Setting up an example of zero
tolerance against women-related crime, the Madhya Pradesh juvenile court acted swiftly in
the matter and held him guilty within six hours of the filing of charge sheet in the case.
As soon as the charge sheet was filed, the court began hearing the case on Monday and sent
the boy to a juvenile home.
The incident had occurred on August 15 when the youth lured the girl to his home in the
village, around 160 km from Bhopal. The teen, who was alone at home, assaulted the girl
sexually. After the victim narrated her ordeal to family, they lodged the complaint with
police and an FIR was filed under section 376 of IPC and relevant sections of POCSO.
The youth who had fled to her relatives’ home in Rajasthan after the incident, was arrested
by Ujjain police on the next day.
 Pre-school Principal Booked Under POCSO After More Complaints Pour in365
Bengaluru:
In the present case, a principal of a play school and other staff is booked under the
Protection of Children from Sexual Offences Act (POCSO).
In connection with that, there were six complaints regarding sexual exploitation of children
age 3 years from the parents, while police are not taken the proper steps.
The complaint is filed on the accused aged 24 for sexual harassment and rape on the 3
years, while she has pain in her body parts. On the medical test, it resulted that she is
sexually molested.
The parents said that the school authorities had initially dissuaded them from filing a police
complaint. They even refused to believe the parents, defending accused instead, saying he
could do no such thing, the parents said.
Once other parents started talking to their children about whether they were uncomfortable
in the school, they realized there were other victims.
"It is not an isolated incident. We have taught our children what is a good touch and bad
touch. After we came to know of this, we spoke to our child and asked whether the Accused
charged here had done anything bad. Explain by one of the parents to the reporter.
364
Vivek Trivedi | News18,https://www.news18.com/news/india/within-6-days-of-crime-14-year-old-convicted-of-
rape-1852169.html,Updated:August 21, 2018, 2:58 PM IST
365
Imran Khan | CNN-News18,https://www.news18.com/news/india/pre-school-principal-booked-under-pocso-after-
more-complaints-pour-in-1352656.html,Updated:February 24, 2017, 11:54 AM IST
245
School Principal and another school official were arrested for failing to comply with
guidelines on child safety issued by the police. Booked under section 188 of the IPC
(disobeying orders of a public servant), they are currently out on bail.
The management of the school has been booked under section 21 of the POCSO Act, which
holds responsible for any person who fails to report the sexual offences against children who
are in his/ her charge.
This action is taken after the protestation of parents in front of the school or police station
for not taking proper action against the authorities. Parent was denied to have access to the
footage of the CCTV cameras, that why an online campaign is started to support the scam.
Accused had been working at the school for the past eight years and lived in the same
building. “While parents were strictly restricted from entering the school, he was allowed in
and out of the premises," said an aggrieved parent.
Deputy Commissioner of Police, however said the charge of police apathy is misplaced. “It
is not right to accuse that we did not act. We did act on time and arrested the accused on the
same day. Parents are coming with their complaints and accordingly registered as per the
case.
Additional Commissioner said three FIRs have been taken up against the school, apart from
the six cases against the first accused.
But activists are unhappy with the attitude of the police, because of the on the very first
point charged with the offence of negligence, that a bailable offence. But here the situation is
more serious because it related to children rights. Though the children were called at the
police station to record the statement that is against the laws, that is specially provided that
the statement of the accused is to be recorded in the child-friendly manner only. These are
small kids, traumatized by the experience of the proceeding.
 Amid Kathua Outrage, J&K Lawyers Demand POCSO-Like Act to Punish Child
Rapists366
New Delhi:
A complaint from a citizen to look into the horrific rape case of an eight-year-old girl in
Kathua, to the National Commission for Protection of Child Rights, and it is preferably
recommended to the Chief Secretary of Jammu and Kashmir.
In the state of Jammu and Kashmir, Protection of Children from Sexual Offences (POCSO)
Act 2012 is not applicable. Here is Ranbir Penal Code or RPC, which is a criminal code
366
Eram Agha | News18.com EramAgha, https://www.news18.com/news/india/why-lawyers-are-demanding-a-pocso-
like-act-in-jk-after-kathua-rape-horror-1716277.html ,Updated:April 14, 2018, 11:22 AM IST
246
applicable in the state as in other Indian have the Indian Penal Code in connection to deal
with, it is provided under Article 370 of the Indian constitution.
In this case, a charge sheet is filed and revealed horrifying details. It has again brought the
issue of paucity of stringent provisions to protect children of Jammu and Kashmir.
“POCSO is a law to provide protection to children from sexual abuse is implemented all
over India except Jammu and Kashmir; it is a difficult situation to deal with the cases of
sexual abuse without having a stringent law for it.
The POCSO Act aims to provide protection to children from violence, including sexual
assault, sexual harassment, and the inclusion of children in pornography. The Act also
provides for the establishment of special courts for trials of such offenders and for related
matters.
As per Article 15 clause (3) of the Constitution, inter alia, empowers the state to make
special provisions for children to measure all proper national, bilateral and multilateral steps
that may induce, create coercion to a child to engage in any unlawful sexual activity, the
exploitative use of children in prostitution, in pornographic performance or other unlawful
sexual practices.
A petition was filed by activist Musab Omer on change.org for the enactment of a POCSO-
like law to address Child Sexual Abuse in Jammu & Kashmir. It mentioned some cases of
child sexual abuse where the victims had to fight with no stringent laws to protect them –
like,
 In February 2016, a teacher was convicted for 10 years in prison after he was proven
guilty of having raped a class 9th student.
 In another case related to mass child sexual abuse, a self-proclaimed faith healer,
who is currently facing a trial in the Chief Judicial Magistrate’s Court, is out on bail.
“He is continuing abuse under the disguise of faith healing,”
Further, in his petition, Omer said, “Child Sexual Abuse (CSA) is the least spoken subject in
a conservative society like Jammu & Kashmir (J&K). CSA is spreading like an epidemic in
J&K; hence, there has been a consolidated effort by a group of victims and survivors to raise
awareness and prevention about CSA along with that the role of parents and school on social
media from 2 years.
He mentioned the study conducted by the Ministry of Women and Child Development in
2007, where it revealed that “1 in every 2 children is subjected to sexual abuse in one or
more forms of sexual abuses till they have the age of majority.
247
However, there is no such constant or stable data is provided in Jammu & Kashmir, also
there is prominent evidence that abuse happens in our homes, schools and religious
institutions. However, Omer said, in his petition, that most people deny the occurrence of
child abuse in J&K.
The fraternities of legal activists believe that a strong POCSO-like law in J&K will not only
encourage the victims of sexual abuse to come forward and seek help but also ensure speedy
trial in such cases.
As per the Human Rights activist, it is a very disappointing situation that the central law or
the special laws for the protection of children and woman does not apply to the state of
Jammu and Kashmir.
In this particular Kathua rape case, there is no need also. Agreed, that in child rape cases we
do not have NCPCR kind of protection but in reality, in this case when it was observed that
police was doing a bad job, the case was shifted to crime branch and without having specific
regulation for that they did well. It is as if we want to give justice than it will be assured by
any medium either by the CRPC or by any specific legislation.
 Relative, 8 Others Gang rape Minor Girl Over Four Years in Telangana367
Hyderabad:
In this case, 16-year-old girls file a complaint regarding the rape case against the 3 person in
which one is his relative in the last four years and multiple times. Along with that she further
stated that she was sexually exploited by eight others including a 'panch' witness (a witness
used by police to sign on crime spot inspection reports).
She explains that his relative living on the first floor of the house offered a soft drink spiked
with sedatives one day and raped her, on multiple occasions he and his two friends raped her
with threat her because they have the video clip of such activity.
 Minor Student Delivers Baby in School Hostel, Six Employees Suspended368

Phulbani (Orissa):
A minor student, class eight, aged 14 years of a state-run tribal residential school in Orissa's
delivered a baby girl in her hostel, prompting the authorities to disengage six of its
employees.
The school ' Seva Ashram High School, is run by the SC and ST development department of
Orissa. Two matrons, two cook-cum-attendants, a lady supervisor and auxiliary nurse
367
https://www.news18.com/news/india/relative-8-others-gangrape-minor-girl-multiple-times-for-four-years-in-
telangana-2001051.html Updated:January 13, 2019, 10:34 PM IST
368
https://www.news18.com/news/india/minor-student-delivers-baby-in-school-hostel-six-employees-suspended-
2000969.html ,Updated:January 13, 2019, 7:27 PM IST
248
midwifery of the institute were disengaged from service for dereliction of duty. The minor
and her newborn are admitted to school where they were being declared normal.
 Youth Rapes Minor Sister for Over a Year, Flees After Impregnating Her369
Coimbatore:
In the present case, the situation is like that was a brother assaulted her younger sister, over
the years. Respectively the boy is in the ‘20s and the girl is in the 9 standards.
The said act comes to light while the school teacher suspected that the girl is pregnant and
gets the check-up for it and it was confirmed by the medical test or the hospital.
The girl explains that her brother sexually assaulted her while there parent was not at home,
and the cases are booked under the POCSO Act.
 Rajasthan Man Booked for Raping Daughter Twice in 2 Days, Manhunt On 370
Kota:
Based on a complaint by the girl aged 13 years old, a case was filed against her father age 40
years old for the rape at the women police station under the provision of the POCSO Act
along with the proviso of the IPC.
According to the minor's complaint, she was first raped by her father on Saturday when they
were headed to her aunt's home in, the girl alleged that her father took her to a mustard
village and raped her. When she started crying and shouting, he threatened her. The accused
again raped his daughter on Sunday on the way to her maternal grandmother's place.
The minor gather the courage and explain about the incident her grandmother, though she
comes along with the girl to make a complaint.
 Ludhiana Man Sentenced to Life Imprisonment for Raping Six-year-old Girl 371
Ludhiana:
In the present case, a sentence of life imprisonment and also imposed a fine of Rs 1.50 lakh
on the convict as compensation for raping a six-year-old girl.
A complaint was lodged by the mother of the victim against the accused while she gets to
know about the incidents from her girl that he attracts her by giving candies and take her into
his room, and raped her; it was supported by the medical examination.
369
https://www.news18.com/news/india/youth-rapes-minor-sister-for-over-a-year-flees-after-impregnating-her-
1983405.html, Updated :December 25, 2018, 6:00 PM IST
370
https://www.news18.com/news/india/rajasthan-man-booked-for-raping-daughter-twice-in-2-days-manhunt-on-
1983319.html,Updated :December 25, 2018, 3:47 PM IST
371
https://www.news18.com/news/india/ludhiana-man-sentenced-to-life-imprisonment-for-raping-six-year-old-girl-
1964879.html Updated :December 8, 2018, 6:06 PM IST
249
 15-year-old Kerala Girl Sexually Assaulted After Several Men 'Entice' Her on Social
Media; 5 Held372
Kannur:
In the present case, five people have been arrested in connection with the alleged sexual
assault of a 15-year-old school girl by several people over different days at various places
after enticing her through social media.
The tenth standard girl was taken to a lodge allegedly sexually assaulted by four of the
accused and the fifth accused, the lodge manager, was arrested for failing to inform to police
about the offence.
As per the girl's statement, the first FIR was lodged and a case under the Protection of
Children from Sexual Offences (POCSO) Act registered, after that she has revealed "15
other offences that have been registered in different police limits in the district. The minor
girl comes to know about the accused through the social media while he was having a fake
profile in the name of a woman.
Chapter 6
Social legal impact of the act
Child sexual abuse not only violates the body or a human being but also affect the trust of a child at
a very primitive stage. For that crime there is law mandated by the ministry of women and child
development in revolutionary action, it is named as protection of children from sexual offences
(POCSO) Act, 2012. The object of the act is to provide protection to the children from sexual
harassment, sexual assault, and child pornography. The acts define a child, a person below the age
of eighteen years of age, and make provision for their paramount interest and well being at every
stage. The act also explains the sexual offences and their “aggravated forms” and certain situation
related to it like by the person over the trust or in authority like father, police officer, teacher,
doctor, caregiver and anyone. The special provision related to the mentally ill and physically
372
https://www.news18.com/news/india/15-year-old-kerala-girl-sexually-assaulted-after-several-men-entice-her-on-
social-media-5-held-1961747.html Updated : December 5, 2018, 7:52 PM IST
250
challenged child. The Act also stated the punishment as per the gravity of the offences, with a
maximum term of rigorous imprisonment for life, and fine.
This special law has a very distinct place in the land of laws as it related to special class, they are
deemed to be a responsibility of constitution, in relation to protect and provide the necessities. In
this light to protect them, provide a healthy and safe environment to the future of our generation. In
this spirit, the act has the magnificent feature as touch the whole systems into a chain process to
connect each unit and made out a proper channel to meet out the issue. But somehow they were
lurking into it some were it does not meet out the objects and not implemented in a way where it
should be. Each and everything has both sides it can be challenge and acceptance in society or there
effect over there.
6.1 Merits of the Act
POCSO is a first law to come out in Indian laws to specially meet out the specified area of sexual
abuses. There are many hopes to fill the gaps by providing the ultimate justice to the child, most
importantly punish the accused through institutional ways that include all the responsible factors of
the community. It overcomes the lacunae of the prior acts; explain extinct provisions related to each
form of abuse in a specific way for the better protection to each and every action of the accused.
The process is slow but the object is very high to achieve in this relation POCSO act is continue
amended for the better of children.
POCSO act has unique features in itself its only need all the surrounding factors must comply all his
professional duties, in the guidance of the legal system while handling the case of child abuse and
child victims of sexual offences. Earlier accused become free though he is committed an offence but
there is not specific provision relating to such offences cause there are certain laws only such as
rape law, outraging the modesty of a woman (section 376, 354 IPC)which will not cover the each
and every conduct of the abuser. To relinquish the loophole of the prior laws, POCSO becomes a
boon for the victim cause every kind of sexual abuse is contemplate as an offence and the case
begins.
There are so many areas which in totality consider as a POCSO and it has a great feature to show
their impact on the society as explaining here.
Merits as relating to laws:
 POCSO is an achievement act because it is an enhancement act over IPC, it only

criminalizes any type of immodesty and traditional intercourse must be done. But POCSO
251
indulges any kind of Sexual Abuse,373 Sexual Harassment,374 Child Trafficking, and Child
Pornography. 375
 It is a gender neutral Act. Though all the previous laws are directly related to the girl child, a
woman only. It is the only first and former act who does not discriminate on the basis of sex.
It is for all children.376
 Special Courts are there for POCSO in every district. 377 For speedy disposal of cases, fast
track courts are there to dispose of the case within one year. There are provisions for
appointment of special public prosecutors. It will help to reduce re-victimization of exploited
children.
 It is a comprehensive act which deals with the exclusive range of sexual offences against the
children that had been not taken into account in the previous laws; these provisions are
easier for people to recognize the crime.
 It is a child-friendly act378, inclusive of all the safeguards to the interest of the child at every
stage: reporting, investigation, recording of evidence and during the process of trial.
 It clearly defines what the child is there is no ambiguity in it, different laws differs in the
concept of child.
 The obligation on reporting379 the crime is one of the prime concepts of the act as it is a duty
to file FIR by the person who knows the crime is done, even though they are not connected
with the person. If they don’t do this, it is punishable by the laws.380
 The identity of a child is not to be known to anyone unless there is a court order. If it
discloses by media or anyone it is punishable.381
 Act also provides accommodation and care to the child if they need protection or if the
assault is done by any of the family members.382
373
Section7. Punishment for committing sexual assault shall be imprisonment for not less than 3 years which may
extend to 5 years, and fine. Act also punishes aggravated sexual assault under Section 9 read with Section 10.
374
Section11. Punishment is imprisonment which may extend to 3 years, and fine
375
Section13. Punishment for using the child for pornographic purposes is imprisonment which may extend to 5 years,
and fine.
376
A child is defined as anyone below the age of 18 years.
377
Shishir Tripathi, Special court decides eight cases in nine months under POCSO Act, The Indian Express, September
14, 2013, available at http://indianexpress.com/article/cities/chandigarh/special-court-decides-eight-cases-in-nine-
months-under-POCSO -act/ (last visited January 25, 2014).
378
Chapter V of the Act. Also see the Guidelines to be followed while interviewing a child, etc. during the trail under
the POCSO Act, available at http://wcd.nic.in/act/POCSO %20-%20Model%20Guidelines.pdf (last visited January 25,
2014).
379
Section19, 20. Reporting of the cases one who knows about the incident.
380
Section 21.Punishment for failure to report or record the case.
381
Section23. Procedure for media and Punishment for this shall not be less than six month or may extent to one year
with fine or both.
382
Rule 4 The Protection of Children from Sexual Offences Rules, 2012
252
 The trial should be conducted in camera 383. No direct question to the child. Family members
must be presented; translators384 are provided in case of the language problem, no direct
communication from any side, communications only either by way of video or through the
mirror which is one-sided.385
 POCSO is a strong law which empowers the child to take a stand against any type of sexual
abuse on them. The child statement is considered as a final word with the supportive pieces
of evidence.
 POCSO is a multidimensional act though it relevant to a child only but it touches different
-different area, distinct clauses or provisions, the different type of offences and punishments,
various types of rehabilitation and compensation 386 in it to conclude the cases of every
possible incident which will come into it.
 POCSO act provides psychological support to the child in an enlightening way to enshrine
and take part in the society as they are, and live their lives happily without any regrets.
 The act works on the foundation that is “best interest of a child” 387
this phrase used as a
baseline for making all the provision, process, and rule of the act.
 POCSO act also talks about the trafficking388 of a child and laid down stringent provision for
abetting such offences. This also involves the trafficking of children for sexual purpose
within the scope of the statute.389
 It is a multi-agency act it connected through the ministry of woman and child, police
department, judiciary, medical department, school, public places, the general public,
government department like CWC, NGO’s. They are supplemented to each other to get the
final verdict about the case.
 POCSO Act is in harmony with international standards which are necessary for the effective
implementation of the POCSO act outside the country.
383
Section37 The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
384
Section38. Assistance of an interpreter or expert while recording the cases.
385
Section36. child not to see accused at the time of testifying.
386
Rule 7. The Protection of Children from Sexual Offences Rules, 2012
387
Emidio Pinho, Analyzing the POSCO Act 2012, The Times of India, April 25, 2013, available at
http://articles.timesofindia.indiatimes.com/2013-04-25/goa/38816079_1_child-rights-penetrative-sexual-assault-
child-welfare-committees (last visited January 23, 2013).
388
Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of
coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of
payments or benefits to achieve the consent of a person having control over another person, for the purpose of any
offence under this Act, is said to aid the doing of that act.
389
Asaram Bapu has been charged with the same offence under the POCSO Act. See Asaram charged with rape,
human trafficking, The Times of India, November 7, 2013, available
at http://articles.timesofindia.indiatimes.com/2013-11-07/india/43773030_1_jodhpur-police-chhindwara-gurukul-
asaram-bapu (last visited January 25, 2014).
253
 POCSO Act is a great asset for curing the sexual abuse because it provides severe, strict,
required and precise punishments390.
 To avoid misuse of the act and to maintain the balance there is” proof of accusation” clause
is inserted in the act. As to prevent the process of law.391
 The medical support system is a rock solid mechanism and method to collect all the essential
information like evidence and their attestation through verification of documentation
adequately or on time. With this motion, POCSO enlightens the provisions that medical
examination is to be conducted within 24 hours of the crime. Intense medical attention and
care are to be needed and given in extreme harsh condition. They have proper format and
direction to follow in this situation by the medical officer. The examination is to be done by
the government medical practitioner who is a female doctor only, if not possible then only
by the private one. It will be free of cost.392
 Judiciary plays a notable role in the POCSO act. Remarkable things are given in the hand of
the judiciary by the legislature to use things as per the condition and interpret the laws as the
best interest of a child. Age is not a number in this act, cause as per the cases mental age is
also considered at the time of determining the case whether it comes into POCSO or not.393
 Speedy disposal of cases is to be done and a trial should be completed within the one year. It
is a duty of the police to file an FIR for all cases and report all the cases to CWC.
 POCSO Act has a multi-tier approach to the peoples as it has their authority at each and
every level to solve the problem of sexual offences. They are duty bound to do their
respective works in their individual capacity at their own levels. The hierarchy is listed
below:
The Government of India Level
 Ministry of women and child development
 Central project support Unit
 National Institute Of Public Cooperation and Child Development
State Government Level
 State Child Protection Society

 State Project Support Unit
390
Sections 8, 10, 12 and 15 The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
391
392
Section27. The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
393
Daniel Johannes Stephanus Van Der Bank v The State (2008)
254
District Level
 District Child Protection Unit

 Child Welfare Committee
 Juvenile Justice Board
 Special Juvenile Police Unit
 District Inspection Committee
Sub-District Level
 Block Level Child Protection Committee

 Village Level Child Protection Committee
POCSO act provides legal scheme and structure to acknowledge the issue of child abuse in a more
stringent and impressive way. In India children are victims of many forms of sexual abuses, evil
practices immensely they are unnoticed and not reported to the authority. But due to the fare and
profitable provision, it is very helpful for the victim and their family to cope up and come out from
the difficult phase of life.
As the above grounds, it can be concluded as POCSO is a powerful tool to protect and secure the
child of the nation. It comprises each and every factor which is necessary for the completion of the
process. It is the special law regarding children in respect of the special category of crime without
any biases regarding sex. POCSO provide re-integration, social acceptance, support person,
counselor and trainers to under the one roof. It is like dominos chain that is interconnected with
each and everyone as Doctor, Judiciary, Police, Government official ex. Department head, CWC
member, and NGO’s worker.
POCSO act aligned with Convention on the Rights of the Child, 1992. First and foremost time
provides separate legal backing especially for child rights. For protection against sexual
exploitation, harassment & abuses like child pornography, molestation, trafficking etc. It has a
distinct provision as to calls for child-friendly environment, an easy procedure with intent to provide
best help and support to the child victim. Special courts are announced with time-bound trial and
mandatory provision related for trial to be conducted in-camera and without revealing the identity of
the child. It is helps to avoid re-victimization of the child & motivates and empower parents to
report the crime. It is necessary to have medical & health check us, immediate and accurate
rehabilitation process & compensation. It has deterrent measure stringent and strict punishments that
include life imprisonment for sexual offenders.
255
The certainty of punishment can be guaranteed through focusing and imposing on the
better prosecuting mechanism that provides an established way to sort out things or
situations and law enforcement agencies. Extending coverage of CCTV cameras under Smart Cities
programmed, training program to all stakeholder, awareness program and campaign by the
government, NGO working with this issue and provide awareness in school and in the institution
will be promising for the better social scenario of the present era. Nevertheless in long run focus or
clear cut vision is to be on value education and to raise a society of no criminals. Ultimate aim and
intention of law should be to reform the society and not to take revenge.
A possible solution for this problem can be the mandatory linking of UID 394 (Unique Identification)
with victim and offender data in cases involving underage parties at the time of reporting the cases.
It will provide help as to check the real age of the victim and perpetrator. Moreover, this can help to
find out the real number of ethical issues and might be it is useful for it and can be cross the
purposes of the original intention of the UID project in India.395
Demerits of the Act
Despite such dramatic reforms, “Crime in India 2014” reveals that the conviction rate under the
POCSO Act is merely 24.6 percent and the pendency rate is an alarming 95.1 percent. This barely
inspires confidence in the criminal justice system that is projected as the panacea for crimes against
children.396
POCSO Act has the potential and integrity in it but laws do not operate in isolation and if they do
not match the real-life circumferences than it will create confusion, complexity or mislead the noble
cause for which the laws actually been made.
Basically law must have to in conformity or in accordance with the other existing laws of the land,
so it would not create contradiction or confusion in the laws. But if such situations happens than it
will arise a big issue and complications for the agency. What we have to manage in terms of which
law is to be consider first, secondly resolve these conflict before the actual crime, it will be wastage
of time, money, energies of the court and the parties, any other affected persons and the authority.
There are certain criteria mention which are creating misconception and mislead the act in
performing their parts, and are the basic ingredients for the derogatory of the act.
394
The UID (Unique Identification) project first conceived in 2006 to be the basis of an efficient welfare system,
involves issuance of a 12 digit individual identification number by the Unique Identification Authority of India on behalf
of the Government of India. It enables identification for every resident Indian and establishes uniqueness of every
individual on the basis of demographic and biometric information (https://uidai.gov.in).
395
https://link.springer.com/article/10.1186/s40163-015-0037-2#Fn1
396
(Source: Illustration by CR Sasikumar)
256
1. Demerits relate to Mandatory reporting clause
This clause bound by the duty that any person who knows that the sexual abuse is done and known
the abuser than they have to report immediately about this to authorities. If they fail to do so then
there is punishment for this also. In this perspective there are certain defects come into the
implementation of the act such as mention below:
 School teacher and counselor are duty bound to report about sex under 18 years of age
because it is consider as crime, instead of it they are there to advice about safe sex or treat
after effects of unsafe sex without losing confidentiality in it or get involve in reporting in
it.397
 POCSO raise many issue for organization, institution, charities and for the people working
with poor, backward class or communities. They try to build relationship with them or get
trust of them. Out of these trusted relationship if such person get to know about anything
related with underage sex or sexual commitment either consensual or not. But it will shatter
the image of such authorities that they play double role.
 Lack of training for professionals (doctors, teachers, psychologists, social workers,
counselors etc.) working with children on how to deal with knowledge of sexual activity and
to respond appropriately can be an additional problem.398
 The legal obligation of Mandatory reporting clause arises the issue, who is or should be
responsible for enforcing or accountable for this.399
 There are penal and financial punishments for failure to do so, but there isno proper
mechanism for its enforcement or check its reliability of it.
 POCSO always used as retrospectively to convict the offender after the crime is done, but it
should be used in perspective way to report the suspicion of child sexual abuse to the
competent authorities in their relevant cases.
2. Demerits related to age
397
398
Goldman 2010
399
257
A big question rise in this act is “AGE”. Age of victims must be under 18 years of age for the
commencement of the Act.400 But what should be used as a measuring tool to determine the age of
the victims is not specified anywhere in the act.
 Determining the age of the victims is a big problem through the special courts is authorized
to do so, lacking a clear guideline, laid into the questionable condition.
 What will be considered authentic and official documentation as relating to age is not
specified anywhere in the Act. Either it may be a birth certificate or the school leaving
certificate.
 What will be a situation if a contradiction between the above two documentation that
childbirth certificate or the school leaving certificate?
 Generally, courts relied upon the forensic method, they give a probable idea regarding the
age that can be inexact or quiet be complicated.401
 No hyper-technical approach is to be applied in cases related toa child; it should be in the
best interest of a child to do.
 In Indian scenario, there is a problem of getting a birth certificate or school leaving
certificate because they are generally not registered to authorities.
 What will be if the accused is also below the age of 18 years old? The act is also silent in
this situation.
 There was Protection of Child Marriage Act, 2006 is prevail in the society with intended to
protect the girls from early marriages. Though they have distinct criteria of discrimination
on the ground of age is a male (>=21 years) and a female (>=18 years) for the valid
marriage. In this, they gave an option to make such marriage as the voidable one at the
instances of the parties.402
 But contradiction arises when marriages of an age of 15 years are not void; it will be valid or
can be registered after attaining majority. But in POCSO age is below 18 years for the
victim. Then what will be the condition of these marriages between the ages of 15 to 18
years. If any misunderstanding arises it will be considered under POCSO or it grows the
number of cases, waste the valuable time of the courts and resources of the criminal justice
system.
 Marriage between the people who are below 18 years of age is illegal as per POCSO but
legal as per customary laws for instance, the Muslim personal law allows marriage once a
person attains the age of puberty. POCSO empower people to use the law as per their
400
Section 2(d) The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
401
Schmeling et al.2003
402
section 3 The Prohibition of Child Marriage Act, 2006 (Act 6 of 2007)
258
choices as they are not happy or satisfied in their matrimonial life they can easily walk off to
POCSO and claim that they were sexually assaulted as per the provision of the POCSO Act.
On the above of it, POCSO doesn’t have any consent clause in it.
 Supreme Court of India ruled in this case that age determination is very difficult in the
absence of birth certificates or other official documentation. It is always useful to check and
conclude the age, as per the opinion of a specially constituted Medical Board but they also
mention that it cannot be considered as a conclusive factor for it. The Supreme Court added
that in the cases of juvenile a linnets approach is to be taken and benefits of doubt are to be
measured as per the gravity of the cases and no such predetermine hyper-technical
approaches as to used to determine the age, in ensuring that the law is not being misused.403
3. Demerits relate to consent to have sex
 Any person (including a child) can be prosecuted for engaging in a sexual act with a child
irrespective of whether the latter consented.
 A husband/wife can be prosecuted for engaging in a sexual act with his/her spouse below the
age of eighteen years.
 The act escalates the age of consent from 16 to 18 years without inspecting the area of
scientific evidence and adolescent sexuality. Children of that age group if participated in any
sexual activity are consider as juveniles conflict with the law. The consensual sexual
relationship between the age group of 16 to 18 years of is questioned causes it is difficult to
find out who is the victim or who is the perpetrator.
 Cases of consensual sex, child marriage etc. not given any space in the legislation and
provide provision for it, leaves an interpretation policy to the judiciary to implement the
provision as per each and every case.
 The Act does not recognize consensual sexual acts among children or between a child and an
adult. Also, since the POCSO Act only looks into the age aspect, a teenage girl below the
age of 18, who agrees to have consensual sexual intercourse with a boy and after that, filled
a complaint against him for sexual abuse, and then the boy is charged under the POCSO for
sexual abuse. But if there is a reverse condition exists than the Act will be kept silent on
such issue as consider to the definition of the Act. Such a person can be booked only for
sexual assault404 under the POCSO Act, the quantum of punishment therein being very less
as compared to penetrative sexual assault405.
403
Babloo Pasi vs State Of Jharkhand and Anr, Supreme Court of India 2008
404
405
259
 Ignoring the role of consent in underage sex combined with the inexact science of age
determination in a climate of mandatory reporting can potentially lead to abuse of the legal
system or miscarriages of justice.406
4. Demerits related to gender biasness
 Gender biases is one of the demerits related to the POCSO act as there is no clear
clarification about the term accused, For the accused person pronoun use there is only “he” it
again arise questions, can only be a male is convicted for the offence under the POCSO Act,
and women still have a protective shield that they are not presumed to be a predator of any
offences like child sexual abuse or forceful sexual assault without any reason.
In a relatively recent case reported from a Kanpur village, a 10-year-old boy was
hospitalized after a minor girl tried to have forceful sexual activity with him. A case
occured in the Kulhalli village where a girl aged 16 years after having sweetly talks made
sexual abuse with intent to have sex on the boy who is the neighbor of her society. In this
case, the boy has suffered serious injuries in his private body parts and they started to bleed
after the sexual abuse happens. In during this process, police official was confused that
under which provision they should entertain the case as both the victim and the prepator are
minor in this case. So it is a difficult situation for the police to lodge a complaint, some of
the legal experts suggested that the offence is coming under the category of Section 8 of the
POCSO407.
 It is an insane provision of the act; no such clear justification is given about this. Assuming a
specific gender as predator of the offence, regardless of the situation and circumstances, of
the cases of sexual violence without knowing the abuser it is just violative of the principle of
equality granted under the Constitution. By any way, it can’t be said a reasonable one.
 It was just an unjust provision to label specific gender as an abuser and grant specific relief
to a woman in relation to punishment.
5. Demerits related to medical issues
As in the POCSO Act, it is a mandatory provision that medical examination of the female child
victim is done only by the female doctor408. On the other hand, there is also an obligation to
make emergency services as soon as possible. As per The Criminal Law (Amendment) Act
406
https://link.springer.com/article/10.1186/s40163-015-0037-2
407
“Uttar Pradesh: 10-yr-old boy injured after girl forces him to have sex”, Indian Express, Lucknow, Jun. 28, 2016.
408
Section 27(2) . The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
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2012, Section 166A IPC it is a direction to the government medical officer on duty to examine
the rape victim without any failure or delay. This will create confusion what will be done in case
of where no female doctor is available.
 POCSO does not grant any exception to have consensual sexual intercourse between
teenagers, two adolescents and an adolescent with an adult. It is illegal irrespective of their
condition like gender, marriage or age of the victim or accused. For enhancing more
confusion a recent amendment is done in IPC as to raise the age of consent from 16 to 18
years of the age to cover all sexual acts under this age group is to be considered as rape
regardless of consent part. An outcome of this is crucial for medical officers (gynecologists).
They have to report all medical termination of pregnancy cases either performed on children,
as per the Medical Termination of Pregnancy Act (MTPA).409
 There is an immediate need to train the medical professional, officer and other staff who are
in the connection of the POCSO Act and to all medical undergraduates and primary health
care doctors for providing the child-friendly environment to the victim. Though they know
how to take an interview, collect evidence, structure assessment and prophylaxis for sexually
transmitted diseases i.e. STDs, HIV, counseling of family and regular checkup of the victim.
 Treatment cost is very high because the medical causality and medical process are really
expensive. Treatment of victims of sexual assault is now compulsory free of cost. But up to
what extent it is not mentioned in this legislature. If such assault results in pregnancy,
whether the pregnancy to is covered under the free treatment is not clear.410
 There is emergence need to involve mental health expert into the purview of the POCSO
Act. The medical officer works into the capacity last till he has knowledge of medical
science only. But here also need mental health professional though they are expert in
medical science as well as in behavioral science also. They are expert to tackle and identify
the signs of genital trauma and also had special expertise and techniques to take history,
forensic details, evidence from their body and place of the accident. They are required to
involve in this for the lookout the victims in relation to the evolution of psychiatric disorder,
by giving individual counseling, family interaction, therapy, and rehabilitation.
6. Demerits related to the Police department
409
The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971)
410
Agarwal SS, Kumar L,Chavali KH. Legal and ethical complexities in the examination of victims of sexual assault in
India: A medical practitioner's perspective. J Med Soc 2017;31:72-6
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Police officials are always mistrusted by the society it makes legislature ineffective. Police
harassment, process, and behavior also weaken the fruitful functioning of the remarkable
endeavor of the government.
 Police should be more sensitive in relation to the victim of sexual abuse and provide proper
reporting of the cases. The fashion of police intermediation in order to avoid FIRs leads to
unreported cases.
 No police training for this special area is to be mention in this legislation.
 Even having special provision and act it is the insensitivity of the police department to lead
and register the Complaint under the clauses of IPC and not under POCSO act.
Above all classification there are certain flaws are there mention below:
 POCSO covered all forms of abuse in its area and mention a specific clause “repeatedly or
constantly” in the definition of sexual harassment, but what interpretation is to be given to
these words with reference to sexual intent is not clearly specify in the code, because clear
intimidation of” repetition and following” words with the motive of sexual greed is always a
“question of fact” and unspecified in the POCSO 2012.
 Presumption of guilt411lies on the accused until it is proved as an innocent. It also creates a
problem. This matter of jurisprudence lends itself is a problem in this light.412
 Problem-related to implementation of the act because it involves many stakeholders like the
criminal justice system, state authorities and third parties and their resources are limited.
 Lack of proper training of the individual, teachers, doctor, advocates, counselor, police and
NGO working in this field to achieve their purposive object in this act.
 It will damage the resources, scarcity, and process of investigation, trial, and recordings of
statements, evidence and medical examinations.
 The act has the distinctive feature as related to abetment or attempts to commit any of the
offences mention in preceding sections.413
 These provisions of the act will have an unintended negative impact on individual capacity
and in combination to society.
 There was the provision of establishing special courts it’s remain as the law only and some
districts have double workload due to this, they only allotted room for these cases. Effect of
all this pendency of POCSO cases as well as regular cases.
411
section 29 The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
412
Andrade and Rao 2013
413
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 Many states have notified special courts or appoint special public prosecutors. But for all
this structural and fundamental needs time, budget and facility. They are not in a capacity to
provide child-friendly environment at once.
In the Saket Court of Delhi, trial was commenced in the POCSO case and there is accused
standing just nearby the victim because there was no arrangement of the translator. But there
were a support person present that time and they gave the courage to the 14 years old victim
to explain with confidence the circumstance of the incident 414. That incident shed the light
upon the damaging the psychological effects as well as make a concern about such situation
occurs in the daily proceeding. There is no wonder that a majority of victims and key
witnesses turn hostile and don’t testify against the accused.
 The other side of the law is that is to mean to protect the child or special treatment to the
victims. But it will come out a tool to abuse people. There have been cases where women
used this as a tool for blackmailing men. It is a dictatorial law it has potential possibilities of
misuse.
 As per the Law Commission report states that it is not always gravity of the punishment and
pressure that fulfill the aims and objective of the prevention but it always needs punishment
though. POCSO act is not an inadequate law but it needed proper implementation and
support of the society.
 In majority of cases a situation come across during the trial process that a witness turned
hostile, the family withdraws the cases or an outside settlement is done by the parties,
lacking witness and evidence, threats and intimidation by the accused party are the reason
for not concluding the cases and it will result in a low rate of conviction. For example in one
case, the examination of the child was conducted on two different dates one month apart.
While the victim supported the prosecution’s case in her first deposition, she turned hostile
on the second date. The court did not examine whether any threats or pressure had been
applied by the accused, and promptly acquitted him.415
 J.S. Verma Committee consciously rejected the death penalty for sexual offences as well as
the lowering of the age of the juvenile, given the credible research that showed the poor
deterrent effect and counterproductive outcomes of these measures. While the legislature has
done its bit, the executive and the judiciary have to join hands to ensure the effective
implementation of the POCSO Act.416
414
https://indianexpress.com/article/opinion/columns/child-sexual-abuse-punishments-draconian-and-ineffective/
415
State vs Mohd Azeem Khan
416
Written by Swagata Raha , Shruthi Ramakrishnan | Updated: December 25, 2015 10:55:06 pm
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Conclusion
At the beginning, it can be concluded that the POCSO is an insufficient law and it has several
shortcomings and deficiency though they should be removed to make it a more efficient and
powerful law. Because these drawbacks are refuting its purpose, further completely vanishing the
purpose to accomplishing the laws in its true spirit. The Parliament must pleasantly and
cooperatively amend The Prohibition of Child Marriage Act, 2006, Personal Laws, for example,
Muslim personal laws and the POCSO Act, to achieve the goal of making all these respectively
without any warfare.
Still, there are an issue and problem identification in this essence of law in connection with the
implementation of the act in the Indian scenario, inflexibility related to the provision of the age of
consent, mandatory reporting clause, an obligation to report and if fails than punishment also,
gender biases and inexact procedure to get the correct age.
The effective implications of the law merely relied on the persons who are authorized to apply and
execute it. The respective governments have to manage that all the necessary arrangement mention
in-laws are to be as stated to the entire agency connected to it. They have to inherit the core
principles to protect child rights in order to justify their duties and this law.
The finding shows that people from the agency or related through it are exceptionally prudent or
cautious regarding reporting of cases and dealing with it. The reason behind is that one who knows
about anything has to report it immediately it is a mandatory clause or either can be said as a
“hanging sword” on the management team. Due to this provision Doctors are denying to examine
children and schools or institution are not willing to do implement these personal safety programs
and campaign nonetheless even the NGOs worker are in the dilemma that they think twice about it,
although they are working only for that. Therefore preventive and precautionary work is getting
affected.
POCSO has a low rate of conviction the main reason is the delay in disposing of the pending cases.
It is an alarming issue and it has to be identifying in the act itself. POCSO is a merry go round thing
it has their own ups and down and unenthusiastic discloser issue. Draconian or either exacting the
law may be, but it has a duty bound to follow the criminal justice procedure to commence the
processes for tackling the cases of the sexual abuses at utmost priority is emotional support and help
to a child is an essence of the POCSO Act.
Our Indian culture is one of the biggest drawbacks for the POCSO act. As per traditional values and
community structure of our society there are the basic conservative families exists that much not
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talk about this topic in general. They are not supposed to be as easy as in modern families. This
silence and ignorance of such emerging issue increase and motivate the abusers to cause he knows
that he is on a safe side after doing any such petty things. Children are even not aware of their
individual, special and protective rights on child sexual abuse because they don’t know or have any
information on that. However, the problems diagnose above in a climate where social and cultural
norms still tolerate, if not sincerely boost and strengthen the POCSO Act, the potential waste and
harm of resources cannot be declined.
Chapter 7
Conclusion and Suggestion
Conclusion
The indication and signs were shown as for the United Nations Secretary – General’s Study on
Violence against Children, in a straight forward way with the fair confirmation of its members that
propose or make suggestions on the problem of violence against children that is spread across the
world. It is curable by ways and means of holding the basics to implemented to remove from its
roots. Professionals, practitioner, and children itself feel that abuse is an undeniable and everlasting
problem of life and quietly not so much adopted in society. Likewise, the present research has
compiled the improvement done by the Governments as they started to recognize the degree and
extent of the dilemma and react on the commitments made to the Human Rights Commission.
Authorities and their associates advancing or leading the solid and specific steps to restrain the
violence against the children to diminish the various effects and pleads for the revolution. Increasing
growths in the research projects, deterrence planning, and remedial acknowledgement are enforcing
and scrutinize. It is considered being a base structure that is so evident to their associate to adapt and
enhance the prevailing intervention and constructing fresh ones. Along with that, it is needed to
provide special protection to the future of the generation because they are the most fallible member
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of the society. The actions taken are considered to be completing all objects to minimize the abuse
for everyone, and it will be a clear intention that focal point on the young ones and they have the
capacity to find out the interest in the community. From the whole study, process outcome will be
shown as the problem is to be occurring frequently in every region. The biggest one is the
differences between the state duties on one side and another side the real condition of children life is
so far away.
The study report present to the UN General Assembly notes, “The Members States have already
made commitments to protect children from all forms of violence. In spite of, we have to administer
from the point of view of children testimony in between the process or with the result of research
that is the commitments are miles away to fulfilled. In many states inadequacy of leaders and policy
maker is the root cause of the issue. Many times it was not considered to be a topic for discussion
for the authority or even fail to notice the different types of abuses, linkage in the system. To
prohibit and eradicate the abuse against children need to be supported by vigorous political
leadership and persistent proposal or encouragement y the civil society. Solid structure or system
must be made at each and every level to safeguard applications of the suggested study as national,
regional, international level. Management, direction, and orientation are the basics at every level.
The suggestion made under the report in Introduction for the execution is fully built upon the
capacity of Government to indulge all the recommendation into the current legal mechanism
blended with public policies, in a harmonized way.
The regular engagement of the human machinery and the financial fund to a grand level for the
proper framework or structure to diminish and answer to the abuses commence against children,
combine into the national planning process, it is indispensable and crucial for this venture.
Punishing the abuser is not the only a requirement to stop violence against children but also
reconstruct the “Mindset” of society and the fundamental situation like the economic and social
condition bloom the situation. For securing the children from abuses the rock-solid regional support
and recommendation is needed, it plays a vital role in connecting the gaps in technical condition, to
assess the progress and has experience of it.
The Council of Europe has launched a three – year programme, “building a Europe for and with
Children.” This programme takes into account the various dimensions of violence against children
in two closely linked stands: the promotion of children’s rights, and the action program “Children
and the Violence.” In the strand focused on promoting children’s rights, the program will help the
European States to set up integrated children’s policies and comprehensive legal framework. The
action programme against violence support State in their obligations to ensure the protection of
children. It provides prevention from violence, prosecution of criminals, and participation by
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children. At an international level, it is expected to support the UN countries in their task of
implementation, mainstreams the recommendations of the Study Report to the UN General
Assembly (elaborated in this study), and monitors achievements. The coordination among the
various UN entities involved in this process is again essential to ensure the continuity of the holistic
and multidisciplinary approach suggested by the Study.
Having noted all the announcement and recommendations it is required to appoint a special
representative for the study of Secretary-General’s Study on Violence against Children, as to act in
capacity, provide and advocate the issue of violence against children at global level as well as they
also helpful to generate the and accelerate the momentum by the study and report process. To
further expedient the progress at every country level, An Inter–Agency group on Violence against
Children was settled in 2005 globally chaired by UNICEF with the support of OHCHR and WHO.
There is a range of UN agencies and NGO’s who are a member of this association. Such efforts may
play a vital role in reforming the UN process as they make or increase coordination between the
existing members, it filter and clear the authority and provide proper attention to issues across the
world within the stimulated command. There is an urgent need to focus on this issue because it is
very violent in nature. Children can’t be set on risk and this report is not to be considering having
dust but it should be treated as the weapon to wipe out the violence against the society. Proper
implementation and action plan to be recommended to execute it immediately. The essence of the
Study is to that any kind of violence against children is not justifiable, all the violence are
preventable. There must be no more delay or excuses in executing because the problem is open to
all, and the government is duty bound to take care all the factors related thereto and have all the
means to deal with it that is affordable and available. Government is primly responsible to provide
protection to children as to act in the capacity to comply with the human rights convention,
obligation, and another undertaking to ensure to provide security and protection of children from
each and every type of violence. Though government is duty bound to do work but alone it can’t
achieve the goals they decided so for the proper execution and implementation all the sector of the
society must be complete their own responsibility as in individual capacity or in authority must
prevent and condemn the violence against children and respond and feels the circumstances of the
child victims.
The POCSO Act comes as a boon to tackle the issue of CSA in India, as it was significant and
clearer and appropriate to tackle the problem. It has a special and particular area in criminal action
which basically affects the children as in sexual behaviors. There were a lot of cases some of
registered or not but they promptly show the impact of the Act on the society in the ways of
educating the public, criminal justice system and public awareness. The issue itself is so sensitive
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people usually not talk about it but after the Act making the reports of CSA is not just acceptable
but also a mandatory provision of the law. The laws have distinguished feature and also very
comprehensive in nature. However, there was three main problems were identified as they create
confusion in the letter of spirit of the laws as in execution specifically in the Indian system. The
issues are:
1. Regarding the age of consent, as there is no flexibility in it as under the 18 years of age.
2. Provision of mandatory reporting.
3. There is no perfect guideline to determine age.
Moreover, the government wants to prohibit and protect children from the prison of the child
marriage though they enacted Prohibition of Child Marriage Act 2006 and with the support of the
POCSO Act that will be restrained underage marriages. With regard to that above indicating
problems were have a solution but it was next to impossible to vanish out In the climate where the
social and cultural norms still prevail in the society. If they do not passionately support the issue
than there must be an eminent waste and loss of resources can’t be refused.
The verdict of the cases shows that there was a different type of ways were follow and maintain by
the Special Courts to avoid the dispute occurred by the age of consent and there should be an
absolute prohibition of any kind of sexual activity which involve the child under the age of 18 years
of age in the POCSO Act. Generally, in such cases acquittals come, as a result, the reason behind
that is given by some of the Special Courts is “concern”. For example:
 What would be the conclusion of applying the IPC concept of ‘assault’ to the POCSO Act?
 Is there any a danger of its development in cases other than romantic relationships?
 The knowledge that the victim was a child is an essential ingredient of the offences under
the POCSO Act and also will the prosecution have to establish this without reasonable doubt
for the case to succeed?
Such cases also focus on the hazardous system of parties to restore the marriage in order to bypass
the punishment. Such unforeseen outcomes of the POCSO Act will result in criminalize of all forms
of sexual contact with the child as well as a spike in the number of cases of child marriage. This is
also abuse of Prohibition of Child Marriage Act, 2006.
Special Courts consider compensation only till the testimony or on the application basis after the
victim testified. In the course of study, it was observed that award and receipt of compensation are
harassed by the confusion. This is slightly based on the prior system or model, as in there is the
responsibility of the State and District Legal Service Authority to regulate the quantum of
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compensation. But after the POCSO Act, Judges of Special Courts are empowered to regulate and
direct the payment of compensation to the children under Section 33(8), POCSO Act. It is the duty
of the state Government to must pay the amount of compensation to the victim within 30 days from
the date of the order of the Special Courts also courts has no limitations they are free to decide any
amount as regard to compensation as in prescribed under the Victim Compensation Scheme.
There is misconception affirm after the interview of some actors of the criminal justice system that
cases are filed by the families just for the sake of compensation in the POCSO Act. In fact, the
compensation is hardly awarded by the Special Courts.
Prosecutors also guide and lead an application on behalf of the victim for filling compensation. It
seems to them that it is a duty of IO to apply for the compensation to DLSA. Private lawyers
attempt to file compensation applications it will end up as a refusal. Sometimes Special Courts
uphold or refuse to entertain the interim compensation till the evidence recorded just to confirm that
the child supports the prosecution or turn hostile.
There must be massive support and gap to the services given to the children and their families as it
was boon and occasional. Generally, in most of cases, support services were not rendered to the
children throughout the whole legal process, except it was priory appointed by the CWC. NGO’s
providing better support services to the victim and their respective families and it has a positive
impact on the child or the family. In spite of that, there is no clear or stringent provision regarding
the “Support Person” as to extent of their support, nature of work, availability of support person and
tools – a technique to work with to provide the support. This will lead a major involvement, action
plans and guidelines from the government as to support the children, without this child may turn
hostile. The support person may help to navigate the court process and also help them to testify in
process of laws.
There is also a duty cast on the Judges to maintain a “special type” of courtrooms to maintain child-
friendly atmosphere within the existing court rooms and at the same time is to deal with the
hardcore criminals charged under the different brutal and anti-terror laws or likewise. Virtually it
was very difficult for the judges itself to come out from one mindset to another in the fractions of a
second to deal with such cases. Irrespective of that the case is to be disposed of as soon as possible.
An absence of separate courtrooms will generally expose the harsh reality of the court’s room to the
child victim in the form of police officers, an accused person in handcuff, though it will create
intimation about the judicial process in the mind of children and their families.
Even though the Act is new and one of its kinds specially designed for protection of children against
the sexual abuses. Several stakeholders may emphasize that there is a need for training to deal with
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the cases of POCSO and related there too, they have not received any special training in past as to
deal cases of child psychology, child sexual abuse in general, etc. in the research stakeholder itself
explain that question was put up in such an insensitive manner while questioning the children which
is developmentally inappropriate nature of question themselves. Emphasis was placed on the need
to develop protocols and guidelines for questioning children.
In cases in which the accused persons include a juvenile as well as an adult, the child victim will
have to testify twice as per the current legal framework. Most respondents agreed that this was not
desirable, but agreed that this was unavoidable because of the existing statutory framework.
Similarly, children have to repeat the statement made to the Magistrate under Section 164, CrPC
does not allow the earlier statement to be admitted as examination- in- chief unless the child is
disabled. Some within the legal fraternity were of the view that minimum sentences under the
POCSO Act are very high. One respondent also felt that the Act should provide sentencing
discretion to judges. Most respondents drew attention to the problematic aspect of a uniform age of
consent that resulted in the criminalization of even consensual sexual exploration among teenagers,
considered as normal developmentally appropriate human behavior.
Other issues include the routine production of children before CWCs; direction by the CWC to the
police urging them to facilitate the recording of second statement under Section 164,CrPC; lack of
clarity as to when a child should be restored to the family by the CWC and non reliance on reports
of the CWC by the special courts.
Confusion in the Act Shown here:
 The Act defines a child as every person below 18 years and provides protection to them
from various kinds of sexual offences such as sexual assault, penetrative sexual assault,
sexual harassment, pornography etc. No space is left for consensual sex in this act for child
age of above 16 years.
 Section 375 of IPC 1860 states that any sexual intercourse with a woman who is below the
age of 16 years is considered to be rape. The consent of the person is irrelevant. But above
16 years old, the consensual sex can be permitted or not led to rape.
 This Act makes it that any consensual sexual activity with a woman or child below 18 years
is a punishable crime under this act. The experts are again this provision to define the age of
maturity or consent is really not justiciable in this modern technological world.
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 Section 375 of IPC states that a husband having sex with his wife shall not be considered as
a rape provided that the age of wife shall be more than 15 years. Here is again confusion
because this act states that any sexual activity with a child who is below 18 years is a
punishable crime.
 Pre- Marital relationship specially among those above 16 years is on rise and recent study
by International Institute for Population Studies (IIPS) on age group 15 to 24 years shows
that 88% young men held hand with a romantic partner and just 42% had sex with partners;
while among women 75% held hands with their partners and just 26% had engaged in
sexual relations.
 The Act is silent if both the person’s victim and accused (who are indulged in sexual
activity) are of an age of below 18 years then what will be the consequences. It means if
two adolescent children below 18 years (male or female) has sexual intercourse with their
consent then what will be the punishment.
 Opponents of increasing the age of consent pointed out that since this Act criminalizes any
sexual activity with persons under the age of 18 years(even if consensual), the police may
misuse it to harass young couples or parents may use this law to control older children’s
sexual behavior.
 Also act says that reporting of the case is mandatory by anyone (include family, neighbors,
NGOs etc) who has information or an idea of offence otherwise he or she liable for
punishment up to 6 months. This provision can be used by family member or neighbors
against adolescents who are in consensual love relationship and environment of fear can be
transmitted in man-dominated society of India.
Suggestions
The act itself is so eminent and deliberately dedicated to children to provide safe and protective
environment to children in the best possible ways. But there are some loophole remain or with the
time it need to be change or develop with growing society as the act was not so old but here we find
some drawback that has to be corrected by the suggestion mention below :
1. One of the Judicial Officer has explained the problem in solving the issue of child
sexual abuse. That is in during the trial process victim gets pregnant and have a baby in
her hands and the accused is still in the prison and the trial is in the process. Now the
victim is alone because none of the family member of her wanted them and her baby
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and no one in the society adopt her as her wife with baby. The only option is left with
her is the accused only and he is in prison. To maintain the balance in the society and to
safeguard the life of a newborn judiciary must think in new direction to make a balance
in between what is wrong or right. It is a prime duty of judiciary to give social status to
the victim in society. Judiciary has to settle the case as to strike balance and make a
happy family with the utmost care and due diligence with each and every aspect of the
cases.
2. Each and every case of this issue has different aspect of life and situation so each and
every case must be checked as per the situation occurred in the case itself and for that
judges has to be free to decide what they get and what comes before them during the
trial process.
3. The judicial officer gave the idea that it was tough to decide the cases of POCSO. Some
cases are fraudulently create in the category of POCSO the basic reason is yet another
issue like property or something but to decide and to get rid of another party they made
a case in the POCSO. This thought were explain in the case where a family of two
brothers had issue regarding the property, in this one father orders his son to commit
sexual offence on her cousin in front of him and the father of the victim is standing near.
It was stated by the victim father. It was observed by the judicial officer that in the
Indian context it was not possible for to son commit such crime in front of his father
because in Indian context we have social respect and value regarding each other,
though the case is consider as fraudulent but it totally depend on the due diligence of the
judiciary.
4. At one instance judicial officer share that in recording the evidence of the medical
officer the officer get shattered when he recall the time he gone through , because the
act done with the victim is so heinous and the witness medical officer had 15 hours
surgery to secure the life of victim. In such cases it is duty of the judicial officer to
check each and every aspect related to the case. They have to follow the principle of
laws and also take the assistance of the behavioral science with the utmost intelligence
in each and every individual cases.
Suggestions for Special Courts
There is a list of some action plan is attached as to have the basic infrastructure or have basic
necessity in the right way to perform the best way to protect the children that are mention below:
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 Take into the account the development needs of the child before scheduling testimony.
Judges should verify if the child is hungry, sleepy or needs to use the toilet before
commencing with the testimony.
 Care should be taken to ensure that the child is not kept waiting on the day of the
testimony.
 Complete the examination – in – chief on the same day. Breaks should be allowed if
necessary.
 Do not allow the defense or the prosecution to question the child directly.
 Admit the statement of a child with disability recorded under Section 164(5A)(a) as
examination – in –chief.
 Do not delay or deprives child victim in need of interim compensation by linking the
decision to award to their testimony.
 Proactively consider compensation application and not hesitate from exercising their
suo motto powers in this regard.
 Direct the DLSA to file a compliance report within 30 days of the award of
compensation.
 In the absences of awaiting room, allow the child to be seated in the judge’s chamber.
 Examine the child in the chamber or any other room in the court complex, if the
courtroom intimidates the child.
 Apply the rulings of the apex court in Jarnail Singh v. State of Haryana and Ashwani
Kumar on the point of age determination.
Here is a list of some general suggestion that is to be needed for the better execution and
implementation of laws. Laws must be hassle-free that there is no such confusion is last as to get
any possibility that the accused has a chance to get away in any form.
 Appointment of Special Public Prosecutors (SPP) who will exclusively deal with the
POCSO cases and other offences related or against children.
 Periodic trainings of prosecutors and legal Aid Lawyers on age and developmentally
appropriate techniques of interviewing children and appreciating their testimony.
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 Joint trainings of police and prosecutors on age and developmentally appropriate
techniques of interviewing children, lapses that should be avoided, and the manner of
investigation and prosecution in sexual offences.
 Periodic training of Chairperson and Member of Child Welfare Committees on their
role under the POCSO Act and Rules.
 Allocation of sufficient funds to facilitate the construction of waiting rooms in all court
complexes, specifically for child victim of sexual abuse and their families, in a manner
that they are not exposed to the accused or to other adult criminals, the police personnel
in uniform and other such persons. The funds made available under the National
Mission for Justice Delivery and Legal Reforms for improvement of courtroom
infrastructure should be considered to ensure that the ambience of the court complex is
child-friendly.
 Development of an Action Plan to address the support gap and to facilitate greater
coordination between support persons, lawyers, prosecutors, and children and their
families. The action plan should indicate measures that will be taken to ensure the
availability of competent and sensitive Support Persons immediately after a FIR is
lodged till the completion of trial.
 Creation of a trained cadre of Support Person with the assistance of Delhi Legal Service
Authority and District Child Protection Units under the Juvenile Justice (Care and
Protection of Children) Act, 2015.
 Allocations of funds to enable Child Welfare Committed to provide remuneration and
travel expenses to Support Person appointed in POCSO cases.
 Ensure that compensation ordered by the special Court is paid within 24 hours.
 Instruction to the Department of Public Prosecutions to issue a guidance note for
prosecutors to enable them to conduct the prosecution in a child–sensitive manner. The
note should also address the need for cooperation between the prosecutor, lawyers of the
victim, and the Support Person.
 Direction to District Child Protection Unit to prepare a list of qualified translators,
special educators, interpreters and other experts to assist the police, Magistrate and
Special Court with the recording of statement of the Child.
 Ensuring that sex education is included in the school curriculum. Parent Education
Programs should be launched to enable the parents and other family member to talk to
children about sex and sexuality at home, and to focus more on sensitizing boys to
respect girls.
274
 Facilitating the establishment of community-level support groups to create awareness
about child sexual abuse, the legal particularly children out of school, children with
disabilities, children living on the street, and children living in residential institutions.
 Collaborating with mass media to devise and promote awareness about applicable laws
and to challenge attitudes and harmful gender stereotypes that perpetuate the tolerance
and condoning of violence against children in all its forms. To also use the media to
promote positive attitudes toward children.
 Developing safe, well–publicized, confidential and accessible support mechanism for
children to report sexual abuse with specific attention to reporting mechanism within
residential institutions.
 Developing guidelines for reporting by professional such as doctors and others in
contact with child victims.
 Ensuring regular inspection of Child Care Homes.
 Commissioning research on evidence-based treatment programs for persons at risk of
sexually abusing children and on root causes of sexual violence against children.
 Organize periodic consultations with police, prosecutors, doctors, CWCs, JJB’s and
support person to understand the problems they face in the implementation or
application of the POCSO Act, identify training needs, document good practices and
identify measures that should be taken to support them in the discharge of their
obligations.
Bibliography
275
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Annexure
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
[ No. 32 OF 2012 ]
[19th June,2012]
An Act to protect children from offences of sexual assault, sexual harassment and
pornography and provide for establishment of Special Courts for trial of such offences and for
matters connected therewith or incidental thereto. WHEREAS clause (3) of article 15 of the
Constitution, inter alia, empowers the State to make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of the United
Nations, which has prescribed a set of standards to be followed by all State parties in securing
the best interests of the child;
285
AND WHEREAS it is necessary for the proper development of the child that his or her right
to privacy and confidentiality be protected and respected by every person by all means and
through all stages of a judicial process involving the child;
AND WHEREAS it is imperative that the law operates in a manner that the best interest and
well being of the child are regarded as being of paramount importance at every stage, to
ensure the healthy physical, emotional, intellectual and social development of the child;
AND WHEREAS the State parties to the Convention on the Rights of the Child are required
to undertake all appropriate national, bilateral and multilateral measures to prevent—
(a) the inducement or coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other unlawful sexual practices;
(c) the exploitative use of children in pornographic performances and materials;
AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and
need to be effectively addressed. BE it enacted by Parliament in the Sixty-third Year of the
Republic of India as follows:—
CHAPTER I
PRELIMINARY
1.Short title, extent and commencement : (1) This Act may be called the Protection of
Children from Sexual Offences Act, 2012.
(2) It extends to the whole of India, except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the
Official Gazette, appoint.
2.Definitions : (1) In this Act, unless the context otherwise requires, —
(a) "aggravated penetrative sexual assault" has the same meaning as assigned to it
in section 5;
(b) "aggravated sexual assault" has the same meaning as assigned to it in section 9;
(c) "armed forces or security forces" means armed forces of the Union or security
forces or police forces, as specified in the Schedule;
(d) "child" means any person below the age of eighteen years;
(e) "domestic relationship" shall have the same meaning as assigned to it in clause
(f) of section 2 of the Protection of
43 of
Women from Domestic Violence Act, 2005. 2005
(f) "penetrative sexual assault" has the same meaning as assigned to it in section 3;
(g) “prescribed” means prescribed by rules made under this Act;
286
(h) “religious institution” shall have the same meaning as assigned to it in the
Religious Institutions (Prevention of
Misuse) Act, 1988. 41 of 1988
(i) "sexual assault" has the same meaning as assigned to it in section 7;
(j) "sexual harassment" has the same meaning as assigned to it in section 11;
(k) "shared household" means a household where the person charged with the
offence lives or has lived at any time in a domestic relationship with the child;
(l)"Special Court" means a court designated as such under section 28;
(m) "Special Public Prosecutor" means a Public Prosecutor appointed under section
32.
(2) The words and expressions used herein and not defined but defined in the Indian 45 of
Penal Code, the Code or the Acts. 1860
CHAPTER II
SEXUAL OFFENCES AGAINST CHILDREN
A. PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR.
3.Penetrative sexual assault : A person is said to commit "penetrative sexual assault" if—
(a)he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into
the vagina, urethra, anus or any part of body of the child or makes the child to do so
with him or any other person or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes
the child to do so to such person or any other person.
B.—AGGRAVATED PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT
THEREFOR.
5.AGGRAVATED PENETRATIVE SEXUAL ASSAUL : (a) Whoever, being a police officer,

commits penetrative sexual assault on a child —
(i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police
station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
287
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits
penetrative sexual assault on a .
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or
armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, remand home, protection
home, observation home, or other place of custody or care and protection established by or
under any law for the time being in force, commits penetrative sexual assault on a child, being
inmate of such jail, remand home, protection home, observation home, or other place of
custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or
private, commits penetrative sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious

institution, commits penetrative sexual assault on a child in that institution; or
Explanation.—When a child is subjected to sexual assault by one or more persons of a group

in furtherance of their common intention, each of such persons shall be deemed to have
committed gang penetrative sexual assault within the meaning of this clause and each of such
person shall be liable for that act in the same manner as if it were done by him alone; or
(g) whoever commits gang penetrative sexual assault on a child.

(h)whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated
substance or corrosive substance; or
(i)whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm
and injury or injury to the sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a child, which—
(i) physically incapacitates the child or causes the child to become mentally ill as
defined under clause (b) of section 2 of the Mental Health Act, 1987 or causes
impairment of any kind so as to render the child unable to
14 of
perform regular tasks, temporarily or permanently; or 1987
(ii) in the case of female child, makes the child pregnant as a
consequence of sexual assault;
(iii)inflicts the child with Human Immunodeficiency Virus or any other life
threatening disease or Infection which may either temporarily or permanently
288
impair the child by rendering him physically incapacitated, or mentally ill to
perform regular tasks; or
(k) whoever, taking advantage of a child's mental or physical disability, commits
penetrative sexual assault
on the child; or
(l)whoever commits penetrative sexual assault on the child more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or
guardianship or in foster care or having a domestic relationship with a parent of the child or
who is living in the same or shared household with the child, commits penetrative sexual
assault on such child; or
(o)whoever being, in the ownership, or management, or staff, of any institution providing
services to the child, commits penetrative sexual assault on the child; or
(p) whoever being in a position of trust or authority of a child commits penetrative sexual
assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant;
or
(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of communal or
sectarian violence; or
(t) whoever commits penetrative sexual assault on a child and who has been previously
convicted of having committed
any offence under this Act or any sexual offence punishable under any other law for the time
being in force; or
(u) whoever commits penetrative sexual assault on a child and makes the child to strip or
parade naked in public, is said to commit aggravated penetrative sexual assault.
6.Punishment for aggravated penetrative sexual assault : Whoever, commits aggravated
penetrative sexual assault, shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to imprisonment for life and shall also
be liable to fine.
C. SEXUAL ASSAULT AND PUNISHMENT THEREFOR.
7.Sexual assault : Whoever, with sexual intent touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which involves physical contact without
penetration is said to commit sexual assault.
8. Punishment for sexual assault : Whoever, commits sexual assault, shall be punished with
imprisonment of either description 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.
D.-AGGRAVATED SEXUAL ASSAULT AND PUNISHMENT THEREFOR.

9.Aggravated sexual assault : (a) Whoever, being a police officer, commits sexual assault on a
child—
(i) within the limits of the police station or premises where he is appointed; or
289
(ii)in the premises of any station house whether or not situated in the police station to
which appointed; or
(iii)in the course of his duties or otherwise; or
(iv)where he is known as, or identified as a police officer; or
(b) whoever, being a member of the armed forces or security forces, commits sexual
assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the security or armed forces; or
(iii)in the course of his duties or otherwise; or
(iv)where he is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, or remand home or protection
home or observation home, or other place of custody or care and protection established by or
under any law for the time being in force commits sexual assault on a child being inmate of
such jail or remand home or protection home or observation home or other place of custody
or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private,
commits sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious
institution, commits sexual assault on a child in that institution; or
(g) whoever commits gang sexual assault on a child.
Explanation.—when a child is subjected to sexual assault by one or more persons of a group

in furtherance of their common intention, each of such persons shall be deemed to have
committed gang sexual assault within the meaning of this clause and each of such person shall
be liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance
or corrosive substance; or
(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury
or injury to the sexual organs of the child; or
(j) whoever commits sexual assault on a child, which—
(i) physically incapacitates the child or causes the child to become mentally ill as defined
under clause (l) of section 2 of the Mental Health Act, 1987 or causes impairment of any kind
so as to render the child unable to perform regular
14 of
tasks, temporarily or permanently; or 1987
(ii) inflicts the child with Human Immunodeficiency Virus or any other life
threatening disease or infection which may either temporarily or permanently impair
the child by rendering him physically incapacitated, or mentally ill to perform regular
tasks; or
290
(k) whoever, taking advantage of a child’s mental or physical disability, commits sexual
assault on the
child; or
(l) whoever commits sexual assault on the child more than once or repeatedly; or
(m) whoever commits sexual assault on a child below twelve years; or
(n) whoever, being a relative of the child through blood or adoption or marriage or
guardianship or in foster care, or having domestic relationship with a parent of the child, or
who is living in the same or shared household with the child, commits sexual assault on such
child; or
(o) whoever, being in the ownership or management or staff, of any institution providing
services to the child, commits sexual assault on the child in such institution; or
(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the
child in an institution or home of the child or anywhere else; or
(q) whoever commits sexual assault on a child knowing the child is pregnant; or
(r) whoever commits sexual assault on a child and attempts to murder the child; or
(s) whoever commits sexual assault on a child in the course of communal or sectarian
violence; or
(t) whoever commits sexual assault on a child and who has been previously convicted of
having committed any offence under this Act or any sexual offence punishable under any
other law for the time being in force; or
(u) whoever commits sexual assault on a child and makes the child to strip or parade naked
in public,
is said to commit aggravated sexual assault.
E.—SEXUAL HARASSMENT AND PUNISHMENT THEREFOR
11. Sexual harassment : A person is said to commit sexual harassment upon a child when
such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object
or part of body with the intention that such word or sound shall be heard, or such
gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person
or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or

through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through
electronic, film or digital or any other mode, of any part of the body of the child or the
involvement of the child in a sexual act; or
291
(vi) entices a child for pornographic purposes or gives gratification therefor.
12. Punishment for sexual harassment: Whoever, commits sexual harassment upon a child
shall be punished with imprisonment of either description for a term which may extend to
three years and shall also be .
Explanation.—Any question which involves “sexual intent” shall be a question of fact all also
be liable to fine.
CHAPTER III
USING CHILD FOR PORNOGRAPHIC PURPOSES AND PUNISHMENT THEREFOR
13.Use of child for pornographic purposes : Whoever, uses a child in any form of media
(including programme or advertisement telecast by television channels or internet or any
other electronic form or printed form, whether or not such programme or advertisement is
intended for personal use or for distribution), for the purposes of sexual gratification, which
includes—
(a) representation of the sexual organs of a child;
(b) usage of a child engaged in real or simulated sexual acts (with or without
penetration);
(c) the indecent or obscene representation of a child, shall be guilty of the offence of
using a child for pornographic purposes.
Explanation.—For the purposes of this section, the expression ‘‘use a child’’ shall include
involving a child through any medium like print, electronic, computer or any other technology
for preparation, production, offering, transmitting, publishing, facilitation and distribution of
the pornographic material.
14. Punishment for using child for pornographic purposes : (1) Whoever, uses a child or
children for pornographic purposes shall be punished with imprisonment of either description
which may extend to five years and shall also be liable to fine and in the event of second or
subsequent conviction with imprisonment of either description for a term which may extend
to seven years and also be liable to fine.
(2) If the person using the child for pornographic purposes commits an offence referred to in
section 3, by directly
participating in pornographic acts, he shall be punished with imprisonment of either
description for a term which shall not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.
(3) If the person using the child for pornographic purposes commits an offence referred to
in section 5, by directly participating in pornographic acts, he shall be punished with rigorous
imprisonment for life and shall also be liable to fine.
in section 7, by directly
participating in pornographic acts, he shall be punished with imprisonment of either
description for a term which shall not be less than six years but which may extend to eight
years, and shall also be liable to fine.
292
in section 9, by directly participating in pornographic acts, he shall be punished with
imprisonment of either description for a term which shall not be less than eight years but
which may extend to ten years, and shall also be liable to fine.
CHAPTER IV
ABETMENT OF AND ATTEMPT TO COMMIT AN OFFENCE
15. Punishment for storage of pornographic material involving child : Any person, who
stores, for commercial purposes any pornographic material in any form involving a child shall
be punished with imprisonment of either description which may extend to three years or with
fine or with both.
16. Abetment of an offence: A person abets an offence, who—
First.— Instigates any person to do that offence; or
Secondly.— Engages with one or more other person or persons in any conspiracy for the
doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy,
and in order to the doing of that offence; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation I.— A person who, by wilful misrepresentation, or by wilful concealment of a

material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to
cause or procure a thing to be done, is said to instigate the doing of that offence.
Explanation II.—Whoever, either prior to or at the time of commission of an act, does
anything in order to facilitate the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.
Explanation III.—Whoever employ, harbours, receives or transports a child, by means of
threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power
or of a position, vulnerability or the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person, for the purpose of any offence
under this Act, is said to aid the doing of that act.
17. Punishment for abetment : Whoever abets any offence under this Act, if the act abetted
is committed in consequence of the abetment, shall be punished with punishment provided for
that offence.
Explanation. — An act or offence is said to be committed in consequence of abetment, when it
is committed in consequence of the instigation, or in pursuance of the conspiracy or with the
aid, which constitutes the abetment.
18. Punishment for attempt to commit an offence : Whoever attempts to commit any
offence punishable under this Act or to cause such an offence to be committed, and in such
attempt, does any act towards the commission of the offence, shall be punished with
imprisonment of any description provided for the offence, for a term which may extend to one
half of the imprisonment for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence or with fine or with both.
CHAPTER V
293
PROCEDURE FOR REPORTING OF CASES
19.Reporting of offences : (1) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973, any person (including the child), who has apprehension that an offence
under this Act is likely to be committed or has knowledge that such
an offence has been committed, he shall provide such information 2
to.- of1974
(a) the Special Juvenile Police Unit; or

(b) the local police.
(2) Every report given under sub-section (1) shall be—
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;

(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the same shall be recorded
under sub-section (2) in a simple language so that the child understands contents being
recorded.
(4)In case contents are being recorded in the language not understood by the child or
wherever it is deemed necessary, a translator or an interpreter, having such qualifications,
experience and on payment of such fees as may be prescribed, shall be provided to the child if
he fails to understand the same.
(5)Where the Special Juvenile Police Unit or local police is satisfied that the child against
whom an offence has been committed is in need of care and protection, then, it shall, after
recording the reasons in writing, make immediate arrangement to give him such care and
protection including admitting the child into shelter home or to the nearest hospital within
twenty-four hours of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but
within a period of twenty-four hours, report the matter to the Child Welfare Committee and
the Special Court or where no Special Court has been designated, to the Court of Session,
including need of the child for care and protection and steps taken in this regard.
(7) No person shall incur any liability, whether civil or criminal, for giving the information in
good faith for the purpose of sub-section (1)
20. Obligation of media, studio and photographic facilities to report cases : Any personnel
of the media or hotel or lodge or hospital or club or studio or photographic facilities, by
whatever name called, irrespective of the number of persons employed therein, shall, on
coming 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, shall provide such information to the Special Juvenile Police
Unit, or to the local police, as the case m
21. Punishment for failure to report or record a case : (1) Any person, who fails to report
the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to
294
record such offence under sub-section (2) of section 19 shall be punished with imprisonment of
either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name
called) who fails to report the commission of an offence under sub-section (1) of section 19 in
respect of a subordinate under his control, shall be punished with imprisonment for a term
which may extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a child under this Act.
22.Punishment for false complaint or false information: (1) Any person, who makes false
complaint or provides false information against any person, in respect of an offence
committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort or
threaten or defame him, shall be punished with imprisonment for a term which may extend to
six months or with fine or with both.
(2) Where a false complaint has been made or false information has been provided by a
child, no punishment shall be imposed on such child.
23. Procedure for media: (1) No person shall make any report or present comments on any
child from any form of media or studio or photographic facilities without having complete
and authentic information, which may have the effect of lowering his reputation or infringing
upon his privacy.
(2)No reports in any media shall disclose, the identity of a child including his name, address,
photograph, family details, school, neighbourhood or any other particulars which may lead to
disclosure of identity of the child: Provided that for reasons to be recorded in writing, the
Special Court, competent to try the case under the Act, may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or photographic facilities shall be jointly
and severally liable for the acts and omissions of his employee.
(4)Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be
liable to be punished with imprisonment of either description for a period which shall not be
less than six months but which may extend to one year or with fine or with both.
CHAPTER VI
PROCEDURES FOR RECORDING STATEMENT OF THE CHILD
24. Recording of statement of a child : (1) The statement of the child shall be recorded at
the residence of the child or at
a place where he usually resides or at the place of his choice and as far as practicable by a
woman police officer not below the rank of sub-inspector.
(2) The police officer while recording the statement of the child shall not be in uniform.
(3) The police officer making the investigation, shall, while examining the child, ensure
that at no point of time the child come in the contact in any way with the accused.
(4) No child shall be detained in the police station in the night for any reason.
(5) The police officer shall ensure that the identity of the child is protected from the public
media, unless otherwise directed by the Special Court in the interest of the child.
295
25. Recording of statement of a child by Magistrate : (1) If the statement of the child is
being recorded under section 164 of the Code of Criminal Procedure, 1973 herein referred to
as the Code), the Magistrate recording such statement shall, notwithstanding anything
contained therein, record the statement as spoken by the child: Provided that the provisions
contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it
permits the presence of the advocate of the
2 of
accused shall not apply in this case. 1974
(2)The Magistrate shall provide to the child and his parents or his representative, a copy of
the document specified under section 207 of the Code, upon the final report being filed by the
police under section 173 of that Code.
26. Additional provisions regarding statement to be recorded : (1) The Magistrate or the
police officer, as the case may be, shall record the statement as spoken by the child in the
presence of the parents of the child or any other person in whom the child has trust or
confidence.
(2) Wherever necessary, the Magistrate or the police officer, as the case may be, may take
the assistance of a translator or an interpreter, having such qualifications, experience and on
payment of such fees as may be prescribed, while recording the statement of the child.
(3) The Magistrate or the police officer, as the case may be, may, in the case of a child having
a mental or physical disability, seek the assistance of a special educator or any person familiar
with the manner of communication of the child or an expert in that field, having such
qualifications, experience and on payment of such fees as may be prescribed, to record the
statement of the child.
(4) Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure
that the statement of the child is also recorded by audio-video electronic means.
27.Medical examination of a child : (1) The medical examination of a child in respect of whom
any offence has been committed under this Act, shall, notwithstanding that a First
Information Report or complaint has not been registered for the
offences under this Act, be conducted in accordance with section 164A of the Code of 2 of
Criminal Procedure, 1973. 1973
(2) In case the victim is a girl child, the medical examination shall be conducted by a
woman doctor.
(3) The medical examination shall be conducted in the presence of the parent of the child
or any other person in whom the child reposes trust or confidence.
(4)Where, in case the parent of the child or other person referred to in sub-section (3) cannot
be present, for any woman nominated by the head of the medical institution.
CHAPTER VII
SPECIAL COURTS
28. Designation of Special Courts : (1) For the purposes of providing a speedy trial, the State
Government shall in consultation with the Chief Justice of the High Court, by notification in
the Official Gazette, designate for each district, a Court of Session to be a Special Court to try
the offences under the Act:
296
Provided that if a Court of Session is notified as a children’s court under the
Commissions for Protection of Child Rights Act, 2005 or a Special Court designated for
similar purposes under any other law for the time being in force, then, such
4 of
court shall be deemed to be a Special Court under this section. 2006
(2) While trying an offence under this Act, a Special Court shall also try an offence other
than the offence referred to in sub-section (1), with which the accused may, under the Code of
Criminal Procedure,1973 be charged at the same trial. 2 of 1974
(3) The Special Court constituted under this Act, notwithstanding anything in the
Information Technology Act, 2000, shall have jurisdiction to try offences under section 67B of
that Act in so far as it relates to publication or transmission of sexually explicit
material depicting children in any act, or conduct or manner or facilitates 21 of
abuse of children online. 2000
29. Presumption as to certain offence : Where a person is prosecuted for committing or
abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act,
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.
30. Presumption of culpable mental state : (1) In any prosecution for any offence under
this Act which requires a culpable mental state on the part of the accused, the Special Court
shall presume the existence of such mental state but it shall be a defence for the accused to
prove the fact that he had no such mental state with respect to the act charged as an offence in
that prosecution.
(2)For the purposes of this section, a fact is said to be proved only when the Special Court
believes it to exist beyond reasonable doubt and not merely when its existence is established by
a preponderance of probability.
Explanation.—In this section, "culpable mental state" includes intention, motive, knowledge
of a fact and the belief in, or reason to believe, a fact.
31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special
Court: Save as otherwise provided in this Act, the provisions of the Code of Criminal
Procedure, 1973 including the provisions as to bail and bonds shall apply to the proceedings
before a Special Court and for the purposes of the said provisions, the Special Court shall be
deemed to be a court of Sessions and the person
conducting a prosecution before a Special Court, shall be deemed to be a 2 of
Public Prosecutor. 1974
32. Special Public Prosecutors : (1) The State Government shall, by notification in the
Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting
cases only under the provisions of this Act.
(2)A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section
(1) only if he had been in practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor under this section shall be
deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of
Criminal Procedure, 1973 and provision of that Code shall have effect
297
2 of
accordingly. 1974
CHAPTER VIII
PROCEDURE AND POWERS OF SPECIAL COURTS AND RECORDING OF EVIDENCE
33. Procedure and powers of Special Court : (1) A Special Court may take cognizance of
any offence, without the accused being committed to it for trial, upon receiving a complaint of
facts which constitute such offence, or upon a police report of such facts.
(2)The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused
shall, while recording the examination-in-chief, cross-examination or re-examination of the
child, communicate the questions to be put to the child to the Special Court which shall in
turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for the child
during the trial.
(4) The Special Court shall 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.
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the
court.
(6) The Special Court shall not permit aggressive questioning or character assassination of
the child and ensure that dignity of the child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not disclosed at any time
during the course of investigation or trial: Provided that for reasons to be recorded in writing,
the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest
of the child.
Explanation.—For the purposes of this sub-section, the identity of the child shall include the
identity of the child's family, school, relatives, neighbourhood or any other information by
which the identity of the child may be revealed.
(8) In appropriate cases, the Special Court may, in addition to the punishment, direct
payment of such compensation as may be prescribed to the child for any physical or mental
trauma caused to him or for immediate rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial
of any offence under this Act, have all the powers of a Court of Session and shall try such
offence as if it were a Court of Session, and as far as may be, in accordance
with the procedure specified in the Code of Criminal Procedure, 1973 for trial 2 of
before a Court of Session. 1974
34.Procedure in case of commission of offence by child and determination of age by Special
Court : (1) Where any offence under this Act is committed by a child, such child shall be dealt
with under the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000 . 56 of
298
2000
(2) If any question arises in any proceeding before the Special Court whether a person is a
child or not, such question shall be determined by the Special Court after satisfying itself
about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any
subsequent proof that the age of a person as determined by it under sub-section (2) was not
the correct age of that person.
35. Period for recording of evidence of child and disposal of case : (1) The evidence of the
child shall be recorded within a period of thirty days of the Special Court taking cognizance of
the offence and reasons for delay, if any, shall be recorded by the Special Court.
(2) The Special Court shall complete the trial, as far as possible, within a period of one
year from the date of taking cognizance of the offence.
36. Child not to see accused at the time of testifying : (1) The Special Court shall ensure
that the child is not exposed in any way to the accused at the time of recording of the evidence,
while at the same time ensuring that the accused is in a position to hear the statement of the
child and communicate with his advocate.
(2) For the purposes of sub-section (1), the Special Court may record the statement of a
child through video conferencing or by utilising single visibility mirrors or curtains or any
other device.
37. Trials to be conducted in camera : The Special Court shall try cases in camera and in
the presence of the parents of the child or any other person in whom the child has trust or
confidence:
Provided that where the Special Court is of the opinion that the child needs to be
examined at a place other than the court, it shall proceed to issue a commission in accordance
with the provisions of section 284 of the Code of Criminal
2 of
Procedure, 1973. 1974
38. Assistance of an interpreter or expert while recording evidence of child : (1) wherever
necessary, the Court may take the assistance of a translator or interpreter having such
qualifications, experience and on payment of such fees as may be prescribed, while recording
the evidence of the child.
(2) If a child has a mental or physical disability, the Special Court may take the assistance
of a special educator or any person familiar with the manner of communication of the child or
an expert in that field, having such qualifications, experience and on payment of such fees as
may be prescribed to record the evidence of the child.
CHAPTER IX
MISCELLANEOUS
39. Guidelines for child to take assistance of experts, etc : Subject to such rules as may be
made in this behalf, the State Government shall prepare guidelines for use of non-
governmental organisations, professionals and experts or persons having knowledge of
psychology, social work, physical health, mental health and child development to be associated
with the pre-trial and trial stage to assist the child.
299
40. Right of child to take assistance of legal practitioner : Subject to the proviso to section
301 of the Code of Criminal Procedure, 1973 the family or the guardian of the child shall be
entitled to the assistance of a legal counsel of their choice for
2 of
any offence under this Act: 1974
Provided that if the family or the guardian of the child are unable to afford a legal
counsel, the Legal Services Authority shall provide a lawyer to them.
41. Provisions of sections 3 to 13 not to apply in certain cases : The provisions of sections 3
to 13 (both inclusive) shall not apply in case of medical examination or medical treatment of a
child when such medical examination or medical treatment is undertaken with the consent of
his parents or guardian.
1 [42. Alternate punishment : Where an act or omission constitutes an offence

punishable under this Act and also under
section166A,354A,354B,354C,354D,370,370A,375,376,376A,376C,376D,376E or section 509 of
the Indian Penal Code, then, not with standing anything contained in any law for the time
being in force, the offender found quality of such offence shall be liable to punishment under
this Act or under the Indian Penal Code as provides for punishment which is greater in
degree.]
2[42A. Act not in derogation of any other law : The provisions of this Act shall be in addition
to and not in derogation of the provisions of any other law for the time being in force and, in
case of any inconsistency, the provisions of this Act shall have overriding effect on the
provisions of any such law to the extent of the inconsistency.]
43. Public awareness about Act : The Central Government and every State Government,
shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity 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;
(b) the officers of the Central Government and the State Governments and other
concerned persons (including the police officers) are imparted periodic training on the
matters relating to the implementation of the provisions of the Act.
44.Monitoring of implementation Act : (1) The National Commission for Protection of Child
Rights constituted under section 3, or as the case may be, the State Commission for Protection
of Child Rights constituted under section 17, of the Commissions for Protection of Child
Rights Act, 2005 shall, in addition to the functions assigned to them under that Act, also
monitor the implementation of the provisions of this Act in such manner as 4 of
may be prescribed 2006
.
(2) The National Commission or, as the case may be, the State Commission, referred to in
sub-section (1), shall, while inquiring into any matter relating to any offence under this Act,
have the same powers as are vested in it under the Commissions for
300
4 of
Protection of Child Rights Act, 2005 . 2006
(3) The National Commission or, as the case may be, the State Commission, referred to in
sub-section (1), shall, also include, its activities under this section, in the annual report
referred to in section 16 of the Commissions for Protection of Child Rights
Act, 2005. 4 of 2006
45. Power to make rules.-(1) The Central Government may, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such
rules may provide for all or any of the following matters, namely:-
(a) the qualifications and experience of, and the fees payable to, a translator or an
interpreter, a special educator or any person familiar with the manner of communication of
the child or an expert in that field, under sub-section (4) of section 19; sub-sections (2) and (3)
of section 26 and section 38
(b) care and protection and emergency medical treatment of the child under sub-section
(5) of section 19;
(c) the payment of compensation under sub-section (8) of section 33;
(d) the manner of periodic monitoring of the provisions of the Act under sub-section (1) of
section44.
(3) Every rule made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
46.Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such
provisions not inconsistent with the provisions of this Act as may appear to it to be necessary
or expedient for removal of the difficulty:
Provided that no order shall be made under this section after the expiry of the period
of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament.
THE SCHEDULE
301
[See section 2(c)]
ARMED FORCES AND SECURITY FORCES CONSTITUTED UNDER
(a) The Air Force Act, 1950 (45 of 1950);

(b) The Army Act, 1950 (46 of 1950);
(c) The Assam Rifles Act, 2006 (47 of 2006);
(d) The Bombay Home Guard Act, 1947 (3 of 1947);
(e) The Border Security Force Act, 1968 (47 of 1968);
(f) The Central Industrial Security Force Act, 1968 (50 of 1968);
(g) The Central Reserve Police Force Act, 1949 (66 of 1949);
(h) The Coast Guard Act, 1978 (30 of 1978);
(i)The Delhi Special Police Establishment Act, 1946 (25 of 1946);
(j) The Indo-Tibetan Border Police Force Act, 1992 (35 of 1992);
(k) The Navy Act, 1957 (62 of 1957);
(l)The National Investigation Agency Act, 2008 (34 of 2008);
(m) The National Security Guard Act,1986 (47 of 1986);
(n) The Railway Protection Force Act, 1957 (23 of 1957);
(o) The Sashastra Seema Bal Act, 2007 (53 of 2007);
(p) The Special Protection Group Act, 1988 (34 of 1988);
(q) The Territorial Army Act, 1948 (56 of 1948);
(r) The State police forces (including armed constabulary) constituted under the State
laws to aid the civil powers of the State and empowered to employ force during internal
disturbances or otherwise including armed forces as defined in clause (a) of section 2 of the
Armed Forces (Special Powers) Act, 1958 (28 of 1958).
Footnotes:
1.Subs. by Act 13 of 2013, s. 29 for section 42 (w.e.f. 3-2-2013).

2.Ins. by s. 29, ibid (w.e.f. 3-2-2013).
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POCSO Final Full Thesis

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POCSO Final Full Thesis

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POCSO: Analytical Study Of

Protection from Sexual Offences against Children

I, Ankita Rokadia do hereby declare that the Thesis being submitted

Place:-Udaipur Dr. Ashutosh

Place: Signature of the Candidate

It is my proud privilege and pleasure to express my sincere appreciation to all

The present research on “POCSO : Analytical Study Of Protection From

It is difficult to express my heartfelt gratitude and a word of thanks would be a

I find it difficult to express my deep sense of gratitude and indebtedness to Mr.

I have no words to express my sincere gratitude towards my parents Mr. Dilip

I wish to mention in special the source of my moral and emotional strength

AIDS - Acquired Immune Deficiency Syndrome

CBI - Central Bureau of Investigation

CCIs - Child Care Institutions

CCL - Children in Conflict with Law

CCTV - Closed Circuit Television

CNCP - Children in Need of Care and Protection

CPCR - Commission for Protection of Child Rights

CPP - Child Protection Policy

Cr.P.C. - Criminal Procedure Code

CRC - Convention on the Rights of the Child

CSA - Child Sexual abuse

CWC - Child Welfare Committee

DCPU - District Child Protection unit

DHR - Department of Health Research

DLSA - District Legal Services Authority

ECHR - European Convention on Human Rights

FGM - Female Genital Mutilation

FIR - First Investigation Report

HIV - Human Immunodeficiency Virus

ICDS - Integrated Child Development Scheme

ICPS - Integrated Child Protection Scheme

IIPS - International Institute for Population Studies

IPC - Indian Penal code

J&K - Jammu & Kashmir

J.J Act - Juvenile Justice (Care and Protection of Children) Act

JJB - Juvenile Justice Board

MLC - Medical Legal Care

MTPA - Medical Termination of Pregnancy Act

MWCD - Ministry of Women and Child Development

NCPCR - National Commission of Protection of Child Rights

NCRB - National Crime Record Bureau

NGOs - Non Government Organizations

OHCHR - Office of the High Commissioner for Human Rights

OPCRC - Optional Protocol to the Convention on the Rights of the Child

OPs - Optional Protocols

POCSO - The Protection of Children from Sexual Offences

PTSD - Post Traumatic Stress Disorder

RPC - Ranbir Penal Code

SCPCR - State Commission for the Protection of Child Rights

SCPCR - State Commissions for Protection of Child Rights

SIT - Special Investigation Team

SJPU - Special Juvenile Police Unit

SPP - Special Public Prosecutors

STDs - Sexually Transmitted Diseases

U.A.E - United Arab Emirates

U.K. - United Kingdom

U.S. - United States

U.S.A - United States of America

UDHR - Universal Declaration of Human Rights

UID - Unique Identification

UNCRC - United Nations adopts Convention of Rights of the Child

UNICEF - United Nations International Emergency Fund

WHO - World Health Organization