SECTION 359-374

In UK, kidnapping is used for both minors and adults, whereas in India kidnapping is used for minors and abduction
for person of any age.

KIDNAPPING

The word Kidnapping is made from two words, ‘kid’ meaning a child and ‘napping’ meaning stealing, meaning
stealing of a kid. There are various substantial legislations in India which deal with kidnapping and abduction like the
Indian Penal Code (Section 359 to Section 369), Immoral Traffic (Prevention) Act, 1956 and Bombay Prevention of
Begging Act, 1959.

Section 359 of IPC defines the word kidnapping. As per this section, kidnapping has been classified in two headings,
they are ‘Kidnapping from India’ and ‘Kidnapping from lawful Guardianship’. But the two terms may overlap each
other.

Seciton 360 deals with ‘Kidnapping from India’. As per this section, when a person is conveyed beyond the limits of
India, 1. Without that person’s consent, or

2. Without a person’s consent who is legally authorised to consent on behalf of that person, the person who takes
such person is said to kidnap that person from India.

Section 361 deals with Kidnapping from lawful guardianship. As per this section, when a person entices a minor
(under 16 years in case of male and under 18 in case of female) or a person of unsound mind , the person so enticing
will be held liable for kidnapping such minor or person from lawful guardianship.

To constitute an offence under this section the following conditions must exist-

1. There must be taking or enticing of a minor. Or a person of unsound mind,

2. Taking or enticing must be without the consent of such guardian,
3. Such minor must be below the age of 16 in case of male and 18 years in case of female,
4. Taking or enticing must be without the consent of such guardian.

Although, this section is not applicable over any person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such
act is committed for an immoral or unlawful purpose.

Section 362

Whoever by force compels or induces any person to go from any place is said to abduct that person.

In general abduction in common language means carrying away of a person by fraud or force. Mere abduction is not
punishable unless it is done as to fulfil conditions in section 364, 365, 366, 367, 368 and section 369

Punishment for this act is given in section 363 of IPC, which may extend to 7 years and he or she is also liable for
fine.

Section 363A of IPC, provides when a person kidnaps or (maims) not being the lawful guardian of a minor, obtains
the custody of the minor, so that such minor may be employed or used for the purpose of begging then such person
shall be punishable with imprisonment which may extend to 10 years and shall also be liable to fine.

Whoever, maims any minor in order that such minor may be employed or used for the purpose of begging, then he
shall be punishable for life .

When, a person is not the lawful guardian of a minor, but employs such minor for the purpose of begging, then it
shall be presumed, that he is kidnapped, so that the minor might be employed or used for the purpose of begging.

Section 364

Kidnapping or abduction in order to be murder

Whoever kidnaps or abducts any person in order that such person may be murdered, shall be punished with
imprisonment which may extend to 10 years and shall also be liable for fine.

Section 364A

Kidnapping for Ransom

Whoever kidnaps or abducts any person or keeps such person in detention and threaten to cause death or hurt such
person, or by some way gives reasonable apprehension that such person may be put to death or hurt in order to
compel the govt., or any foreign state or international govt. organisation or any other person, to force them to do or
to prevent or abstain them from doing some act for pay a ransom, then such person shall be punishable with death
or imprisonment for life and shall also be liable to fine.

Section 365

Kidnapping or abduction with intent secretly and wrongfully to confine person

If a person kidnaps or abducts any person with intent to cause that person secretly and wrongfully confine such
person, then such person shall be punished with imprisonment for a term which may extend to 7 yrs and shall also
be liable to fine.

Section 366

Whoever kidnaps or abducts any woman with intent that she may be compelled to marry any person against her will
or in order that she may be forced or seduced to prostitution, then such person shall be punished with
imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Section 366-A and 366-B were added to IPC by an amendment act in 1923 so that they remain as per International
Convention for the Suppression of the Traffic in Women and Children signed in Paris in 1910.

Section 366A

Whoever induces any minor girl under the age of eighteen years, to do any act with intet that such girl shall be
forced or seduced to have illicit intercourse with another person shall be punishable with imprisonment which may
extend to 10 years of imprisonment.

Section 366B

Whoever imports any girl from foreign country whose age is less than 21 years with the intent to force or seduce her
to have illicit intercourse with another person, shall be punishable with imprisonment upto 10 years.

Section 377

If any person kidnaps or abducts any person in order that such person may be subjected to grievous hurt or slavery
or unnatural lust of any person, then such person shall be punished with imprisonment of a term which may extend
to 10 years and shall also be liable to fine.

Section 368

If any person knows that any person has been kidnapped or is abducted and if such person conceals such
information with the same intention or knowledge for the same purpose as that of the person who kidnapped or has
abducted such person, shall be liable for same punishment

Section 369

If any person kidnaps or abducts any child under the age of ten years with the intention of taking anyu movable
property dishonestly shall be punishable with imprisonment for a term which may extend to seven years and shall
also be liable to fine.
POSCO Act, 2012

NEED

Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed to protect rights of a child
was Goa’s Children’s Act, 2003 and Rules, 2004. In IPC sections dealing with child sexual abuse were Section 375, 354
and 377. These sections neither protected male children from sexual abuse nor protected their modesty. Owing to
the lack of any specific legislation, it was pivotal to tackle the issue of growing child sexual abuse in the country. In
the year 2012, POSCO Act, 2012 was enforced on 14th November 2012.

This act has 46 Sections.

This act enunciates the punishment where the offences have been committed against the child. Section 2(1)(d) of
the POCSO Act contains the definition of child. It states ‘a child means any person below the age of eighteen year’. It
means ……elaborate yourself.

FEATURES OF THE POCSO ACT, 2012

1. CONFIDENTIALITY OF THE VICTIM- Section 23 of the POCSO Act provides to maintain the child victim’s
identitu unless the Special Court has allowed the disclosure. As per section 23(2), no reports in any media
shall disclose the identity of a child including his name, address, photograph, family details, school,
neighbourhood and any other particulars which may lead to the disclosure of the identity of the child.
2. Gender neutral provisions- POCSO Act does not create does not crete any distinction between the victim or
the perpetrators on the basis of their gender. The definition of the word child includes anyone below the age
of 18 years and in many cases the courts have even convicted women for engaging in child sexual abuse
incidents.
3. Mandatory reporting of child abuse cases- generally sexual offence cases are hided from the society, due to
stigma attached to these crimes. Therefore, for proper implementation of POCSO Act, reporting of these
incidents by the third parties who have the knowledge of such offences, has been made mandatory under
Section 19 to 22 of this Act. These laws are there because children are vulnerable nad helpless and society
has the duty to protect the interests of the children.
4. The last seen theory- This theory is applied in the child aexual abuse trials. According to this theory the
person who is last seen with the victim is assumed to be the perpetrator of the offence when the time gap
between they point when they were last seen alive.
5. Child Friendly investigation and trial- Section 24, 26 and 33 of the POCSO Act lay down procedure in which
investigation shall be suitable for a child. Some of the points which shall be considered are-
i. The statement of the child shall be taken at his residence and generally by a woman police officer.
ii. Officer taking statement of the child should not wear uniform.
iii. A child is not to be detained in the police station at night.
iv. The officer should ensure that identity of the child is not revealed. , etc.

OFFENCES AND THEIR PUNISHMENTS UNDER POCSO

1. Section 3 defines penetrative sexual assault and it includes penetration (of any object or body part) into
private parts or mouth of the child, manipulating the body parts of the child, making the child penetrate the
offenders or any third person’s body.
2. The penetrative assault becomes aggravate sexual assault (Section 5) when the abuser is in the position of
authority or position of trust or if the victim is related by blood or if the victim becomes pregnant, or suffer
injuries.
3. The offence of sexual assault (section 7) happens when the abuser fondles the private part of the child or
makes the child fondle the private part of the offender.
 4. The sexual assault becomes aggravate (section 9) depending on the relation of the abuser with the victim,
nature of the assault and impact of the assault. Or we can say that Section 9 and 10 of the POCSO Act
contain provision regarding aggravated sexual assault on a child.
5. Sexual harassment- section 11 of the POCSO Act defines sexual harassment, it includes six cases which
constitute sexual harassment of a child-
i. First, if anyone utters any word or makes any sound or exhibits any object with sexual intent to a
child.
ii. Second, if anyone makes a child exhibits his body so that it is seen by the offender or any other
person.
iii. Third, if any person shows any child any form or media for pornographic purposes.
iv. Fourth, if anyone constantly watches or stalks a child directly or online.
v. Fifth, if anyone threatens to use a real or fabricated depiction of any part of the body of the child or
the involvement of the child in a sexual act through electronic, film or digital.
vi. Sixth, if anyone entices a child for pornographic purposes.

6. Pornography: Section 13 of the POCSO Act states that anyone who uses a child for pornographic purposes by
either representing the sexual organs of the child or using a child in real or simulated sexual acts or
representing a child indecently or obscenely in programmes or advertisements on television or on internet,
commits the offence under this section and is liable in accordance with Sections 14 and 15 of the POCSO Act.
In the case of Fatima A.S. v. State of Kerala (2020), in a video on social media, a mother was seen being
painted her naked body above the navel by her two minor children and she alleged that the motive of the
video was to teach sex education to them. The Supreme Court of India observed in this case that, “in the
initial years, what the child learns from their mother will always have a lasting impression on their mind. It is
usually said that the mother will be the window of the child’s to the world”. Hence the same was covered
under Section 13.

Punishment for offences covered in the POCSO Act, 2012

Punishment for the above offences is specified in the table:

Relevant
Name of the offence provision of the Punishment
POCSO Act
Penetrative sexual assault on a child Minimum imprisonment of 10 years which may
Section 4
of 16 to 18 years of age extend to imprisonment for life plus fine
Minimum imprisonment of 20 years which may
Penetrative sexual assault on a child
Section 4 extend to imprisonment for the remainder of
below 16 years of age
natural life plus fine
Minimum rigorous imprisonment of 20 years which
Aggravated penetrative sexual
Section 6 may extend to imprisonment for the remainder of
assault
natural life plus fine or death
Sexual assault Section 8 Imprisonment of 3 to 5 years plus fine
Aggravated sexual assault Section 10 Imprisonment of 5 to 7 years plus fine
Imprisonment which can extend upto 3 years plus a
Sexual harassment Section 12
fine.
Use of a child for pornography Section 14(1) First conviction- imprisonment extending up to 5
 years second or further convictions- imprisonment
extending up to 7 years plus fine
Use of a child for pornography while
Minimum imprisonment of 10 years extending up to
committing an offence under Section Section 14(2)
imprisonment for life plus fine
3
Use of a child for pornography while
committing an offence under Section Section 14(3) Rigorous imprisonment for life plus fine
5
Use of a child for pornographic
purposes while committing an Section 14(4) Imprisonment of 6 to 8 years plus fine
offence under Section 7
Use of a child for pornographic
purposes while committing an Section 14(5) Imprisonment of 8 to 10 years plus fine
offence under Section 9.
Offence of storing pornographic
material involving a child for Section 15 Imprisonment extending upto 3 years or fine or both
commercial purposes

Abetment of child sexual abuse

Section 16 of the POCSO Act defines the abetment of the offence. The following acts constitute abetment of offence
under the POCSO Act:

 Instigating any person to commit that offence;

 Engaging in any conspiracy with one or more persons to commit any offence when any illegal act or
omission takes place in consequence of that conspiracy;
 Aiding to commit that offence intentionally.
The punishment for the abetment of offence is specified under Section 17 of the POCSO Act, 2012 according to
which a person who abets the commission of an offence and the offence is executed is to be punished with the
punishment that has been provided for that offence under the POCSO Act.

Attempt to child sexual abuse

Section 18 enunciates that attempt to commit any offence under the POCSO Act, 2012 is also an offence inviting
either of the two following punishments:

 Imprisonment provided for that offence for a term extending upto one-half of the imprisonment for life,
with or without fine;
 Imprisonment provided for that offence for a term extending upto one-half of the longest term of
imprisonment with or without fine.

Trial of offences under the POCSO Act, 2012

The POCSO Act specifies the provisions regarding the trial of a reported offence under Sections 33 to 38. Following
are some glaring features provided under the POCSO Act regarding the conduct of trial:
Deposition of the victim

Section 33 specifies that the Special Court can take cognizance of the offence without the accused being committed
to the trial. Section 36 mentions that the child should not be exposed to the accused at the time of giving evidence
but this provision was not followed in the case of Vasudev v. The State of Karnataka (2018). The deposition sheet
reflected that the victim was aggressively questioned and only when she had got emotional while narrating the
incident, the accused was sent out. The Karnataka High Court dismissed the appeal of the accused who was
convicted under Section 4 of the POCSO Act.

Furthermore, in the case of Nar Bahadur Subba v. State of Sikkim (2017), in the appeal before the Sikkim High Court,
the Court observed that in the trial court deposition, the teachers of the victim have stated, ‘It is true that I am not
well acquainted with the character of the victim’. To this, the Court noted that gauging the character of an 11-year-
old girl is of no question and the cross-examination has violated provisions of Section 33 of the POCSO Act.

The time limit for disposal of cases

Section 35 of the POCSO Act stipulates the following timelines:

 For recording the evidence of the child: 30 days from the date of taking cognizance of the offence,
 For completing the trial: 1 year from the date of taking cognizance of the offence.
In the case of Shubham Vilas Tayade v. The State of Maharashtra (2018), the Special Court allowed the prosecution
for recording evidence after 30 days of taking cognizance. This order was challenged by the accused, being violative
of Section 35 of the POCSO Act. However, the high court agreed with the counterargument of the APP that as the
accused did not challenge the application of the prosecution so he cannot challenge the order. Furthermore, it was
observed that even otherwise, the Special Court can record evidence after 30 days and the only rider provided by
Section 35 is that the reasons for the delay have to be recorded.

Medical and forensic evidence

Child sexual abuse is rarely diagnosed merely on the basis of physical examination. In many instances, the scars or
bruises on the body of the victim are not found either because the cases are not immediately reported or the sexual
abuse does not result in such injuries.

In the case of Pintu v. State of U.P. (2020), the conviction of the accused under Section 377 of the Indian Penal Code,
1860 and Section 6 of the POCSO Act were set aside and one of the reasons was that there was no mark of external
injury around the anus of the victim and the Allahabad High Court opined that in case of a sexual assault on a boy of
7 years old by a person aged 23 years, there should have been some kind of external injury.

In the case of State (NCT of Delhi) v. Anil (2016), the Trial Court and the Delhi High Court acquitted the accused from
the charges under POCSO Act due to the following points:

 The victim refused her internal medical examination when she was brought to the hospital.
 The medical reports reflected that her menstrual cycle was regular and hence, her claim that she had
gotten pregnant due to a physical relationship with the accused had failed. Moreover, no proof of
hospitalization was provided to her.
 There were no injuries on her body.
Admissibility of the medical history of the victim

The medical history of the victim is not given much importance by the Indian judiciary. In the case of Gangadhar
Sethy v. State of Orissa (2015), the doctor did not find any injury marks on the body of the victim but stated that
based on her medical history, here is the possibility of an attempt to sexual assault cannot be ruled out. On the other
hand, the Orissa High Court paid no emphasis on the medical history and held that one cannot interpret what the
victim meant by the term ‘assault’. It cannot be extended to imply that she was talking about penetrative sexual
assault. Moreover, the medical or other evidence did not justify such a conclusion.

Duties of a medical examiner

It is essential that the medical examination of a child is conducted with utmost care and precaution. Rule 5(3) of the
POCSO Rules, 2012 makes the provision that no medical facility or practitioner who renders emergency medical care
to a child should ask for any kind of legal or other documentation before providing such care. Apart from
this, Section 27 of the POCSO Act lays down certain laws regarding the conduct of medical examinations. These are
as follows:

 The medical examination has to be conducted in accordance with Section 164A of the Criminal Procedure
Code, 1973.
 A medical examination of a girl is to be conducted by a woman practitioner.
 It should be conducted in the presence of a person in whom the child has trust, for example, his/ her
parents, otherwise in the presence of a woman nominated by the head of the medical institution.

Jurisdiction of the POCSO Act, 2012

Section 28 of the POCSO Act lays down the provision regarding the designation of special courts. It says that the
special courts also have the jurisdiction to try offences under Section 67B of the Information Technology Act, 2000.
Section 33 gives the power of a Court of Session to the special courts. Furthermore, Section 42A specifies that in case
of any inconsistency, the provisions of the POCSO Act would override the provisions of any other law.

In the case of M. Kanna v. State (2018), there were discrepancies in the professional duty of the defence counsel
who violated the right to a fair trial of the accused. The Madras High Court after making note of this fact remanded
the case back to the trial court to provide the opportunity to the accused to cross-examine the witness. Also, the
case was transferred from the trial court in which it was pending as it was presided over by the same judge.

The burden of proof under the POCSO Act, 2012

The objective behind the legislation is to ensure that the actual offenders are behind the bars. One approach that
has been inoculated in the POCSO Act is to reduce the burden on the prosecution to prove certain things by
introducing presumptions. Section 29 and 30 of the POCSO Act lay down the provision with respect to the burden of
proof.

According to Section 29, the person who is prosecuted for the commission of the child sexual abuse offences is
presumed to have committed or abetted or attempted to commit such offence. The main issue that arises while
implementing this provision is that the nature of presumption that has to be applied is at the whim and fancy of the
courts. Also, this provision has been challenged to be unconstitutional in a number of cases as it intervenes with the
right to be presumed innocent, right against self-incrimination and the right to remain silent.
Further Section 30 provides the opportunity to the accused to prove his/ her innocence thereby making the
presumption under Section 29 rebuttable. In the case of S. Suresh v. State of Tamil Nadu (2017), the accused was
convicted under Section 6 of the POCSO Act and he had not rebutted the presumption of Section 29. Therefore, the
Court observed that the rebuttable presumption also proves the guilt of the accused.

ABANDONEMNT AND EXPOSURE OF AN INFANT

SECTION 317

This section deals with the offence of exposing a child under twelve years of age with an intention of whooly
abandoning it, done by a parent or any person having care of it. An offender under this section will be liable with
imprisonment of upto 7 years or fine or both.

ESSENTIAL INDGREDIENTS

1. CHILD TO BE UNDER TWELVE YEARS

This section makes provision for protection of children under 12 years of age and they are considered
inefficient in safeguarding themselves. The primary responsibility is cast on the parents and persons holding
custody of such child for the purpose of its care and protection.

2. RESPONSIBILITY IS ON BOTH FATHER AND MOTHER OR PERSON HAVING CARE OF SUCH CHILD
 Contrary to the provisions of Guardians and Wards Act, 1890, wherein the father is declared as natural
guardian of the child, this section equally obliges both the father and mother alike to provide care and
protection to the child, irrespective of child being born in or outside the wedlock.
Apart from father and mother of a child, this section imposes an equal responsibility over a person made
responsible for the care and protection of the child.

3. EXPOSING OR LEAVING WITH INTETION TO ABANDON

The essence of this provision is ‘exposing /leaving’ the child along with an ‘intention to abandon’ it. If a child
is left in danger, neglecting it, and inadequately protecting it from naturally hazardous elements.
Further, it manifests that such leaving of the child should be done with the intention of abandonment of the
child. Thus, merely leaving a child temporarily does not fulfils the intention of this section, it should be done
on a permanent basis.

4. DEATH OF A CHILD AS A CONSEQUENCE OF THE EXPOSURE

If death of a child under 12 years of age happens because of the aforementioned exposure/leaving, then the
parent or such person in whose care the child was placed, shall be held liable for the offence of culpable
homicide or that amounting to murder. Although, death of a child must be a result of unlawful
exposure/abandonment and should’ve been done with the knowledge that it may likely to cause such death.

SECTION 318

This section deals with situation where a person intentionally conceal a child’s birth by secretly burying or disposing
of the dead body of the child, irrespective of the death occurring before/after/ during its birth, a person convicted
under this section shall be liable with imprisonment which may extend to 2 years or fine or both.

Essential Ingredients of this Section

Secret disposal of bodies of children

As per the Registration of Births and Deaths Act, 1969, there is compulsion over every person to register births and
deaths with the local authorities, since certificates issued for it are rather essential for various civil transactions.
Detection and prevention of infanticide is one of the prominent principle operating behind this provision. This
section further provides punishment for all other methods of it being secretly disposed of.

Dead Body of Child

The term ‘body’ in this section indicates a precondition that the secret burial/disposal should be the dead body of
the child, i.e. the child should not be a mere embryo/ foetus but should’ve developed and matured .

Concealing of birth

An essential element stipulated by this section is that the intention of the accused should be concealment or
attempt to conceal the birth of the child. The offence becomes complete when the birth of the child, dead or living is
concealed by any means.

Shortcomings of the POCSO Act, 2012

There are various loopholes in the procedure and implementation of the laws specified under the POCSO Act.
Following are some criticisms:
 Problem with the application of the last seen theory: The last seen theory can lead to wrongful
conviction in several cases and therefore, it cannot be applied without circumstantial evidence. It was
held by the Supreme Court in the case of Anjan Kumar Sarma v. State of Assam (2017), that the last seen
theory is a weak piece of evidence and cannot be relied upon single-handedly.
 Unprepared investigation machinery: The investigation machinery in the child sexual abuse cases is not
well acquainted with the procedure which leads to a faulty investigation. For instance, in the case of the
Addl. Sessions Judge, Hoingoli and Ors. v. Bhawat and Ors. (2017), the High Court of Bombay acquitted
the alleged accused as the frock of the victim which was in the custody of police was unsealed and
therefore, the semen stains on the frock could not be relied upon for the conviction.
 Silent on consensual sexual activities: In case of sexual intercourse with consent, one of which is minor,
the partner who is not minor can be prosecuted under the POCSO Act as the consent of a minor is not
considered relevant under this Act.
 False complaints by children are not punishable: Section 22 of the POCSO Act provides for the
punishment to the persons who file a false complaint in order to humiliate, extort, threaten or defame
another person. However, a child is exempted from any such punishment which is a loophole as many
people take advantage of this exemption and misuse this provision.
 Pending cases: Although, the POCSO Act specifies that “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” under Section
35(2) but the number of pending cases is rising which is creating a huge problem in making the justice
mechanism effective.
 Two-finger test violates privacy and dignity: Two-finger test is administered on the victims of sexual
assault while conducting their medical examination. If the vagina of a girl is capable of allowing two
fingers to move freely then it is inferred that the victim has been subjected to repeated sexual
intercourse. This test is conducted on the minor girls against whom any offence under the POCSO Act is
committed. Although the government banned this test in the year 2012, it is still administered. In the
case of Lillu @ Rajesh and another v. State of Haryana (2013), it was observed that the administration of
two-finger tests breaches the right to privacy, dignity and mental integrity of a woman and hence it is
unconstitutional.
 Introduction:

The Indian Penal Code (IPC) is the main criminal code of India. It was first drafted in 1860 by the Indian Law
Commission, and has since undergone several amendments. Section 305 IPC is one such provision, which deals with
the offence of abetment of suicide of a child or insane person. In this article, we will take a closer look at section 305
IPC, including its scope, elements, punishments, and judicial interpretations.

Scope of Section 305 IPC:

Section 305 IPC deals with the offence of abetment of suicide of a child or insane person. The section is based on the
principle that the lives of children and insane persons are especially vulnerable and require protection. Therefore,
any person who abets the suicide of such persons is subject to punishment under the law.

It is important to note that the section only applies in cases where the victim is a child or an insane person. A child,
for the purposes of this section, is defined as any person under the age of 18 years. An insane person, on the other
hand, is a person who is incapable of understanding the nature and consequences of his/her actions.

Abetment of Suicide

As discussed earlier, abetment means instigating, encouraging, or aiding the commission of a crime. In the context of
suicide, abetment means instigating or encouraging a person to commit suicide or aiding in the commission of the
act.

To prove abetment of suicide, it must be established that the accused had a direct or indirect role in instigating or
encouraging the victim to commit suicide. The act of abetment need not be the sole cause of the suicide, but it must
be a significant cause that led to the commission of the act.

Elements of Section 305 IPC:

In order for a person to be convicted under section 305 IPC, the following elements must be established:

1. Abetment: The accused must have abetted the suicide of a child or insane person. Abetment is defined under
section 107 IPC, and includes instigating, aiding, or conspiring to commit an offence.
2. Suicide: The victim must have committed suicide. Suicide is defined as the act of intentionally taking one's own life.
3. Child or insane person: The victim must be a child or an insane person.

Punishment under Section 305 IPC:

The punishment for abetment of suicide of a child or insane person is imprisonment for a term which may extend to
ten years, and shall also be liable to fine.

Judicial Interpretations of Section 305 IPC:

Over the years, section 305 IPC has been the subject of several judicial interpretations. Some of the notable cases
are discussed below:

1. In State of Punjab v. Iqbal Singh, the accused was convicted under section 305 IPC for abetting the suicide of his wife.
The victim was suffering from a mental illness, and the accused had allegedly harassed her for dowry. The Supreme
 Court upheld the conviction, and held that the accused had abetted the suicide of his wife by subjecting her to
cruelty.
2. In Sanju v. State of Haryana, the accused was convicted under section 305 IPC for abetting the suicide of a 14-year-
old girl. The victim had allegedly been harassed by the accused, who was her teacher, and had taken her own life as
a result. The Supreme Court upheld the conviction, and held that the accused had abetted the suicide of the victim
by subjecting her to continuous harassment.
3. In Naresh Kumar v. State of Rajasthan, the accused was convicted under section 305 IPC for abetting the suicide of
his wife. The victim was suffering from a mental illness, and had allegedly been subjected to physical and mental
cruelty by the accused. The Supreme Court upheld the conviction, and held that the accused had abetted the suicide
of his wife by subjecting her to cruelty.

Conclusion:

Section 305 IPC is an important provision that provides protection to vulnerable sections of society. The section
recognizes the special vulnerability of children and insane persons, and seeks to deter persons from abetting their
suicide. It is important for law enforcement agencies and courts to take a serious view of cases under this section,
and to ensure that justice is done to the victims and their families.

SECTION 293 OF IPC

Section 293 of the Indian Penal Code (IPC) is titled "Sale, etc., of obscene objects to young person," and it makes it a
criminal offense to sell or distribute any obscene object to a person under the age of 20. The section applies to a
wide range of materials, including books, magazines, photographs, films, and any other object that can be used to
show or depict obscenity.

The section defines an "obscene object" as any material that appeals to the prurient interests of a person, portrays
sexual conduct in an offensive manner, or lacks artistic or literary merit. In other words, any material that is likely to
corrupt the mind of a young person or be detrimental to their moral development can be considered obscene and
subject to punishment under Section 293.

The punishment for violating Section 293 of the IPC can range from imprisonment for up to three years and a fine to
imprisonment for up to seven years and a fine, depending on the severity of the offense. Additionally, the section
also provides for the forfeiture of any obscene object that has been sold or distributed to a young person.

The purpose of Section 293 is to protect young people from exposure to obscene materials that could have a
harmful effect on their moral and social development. The section recognizes that young people are particularly
vulnerable to the negative influences of obscene materials and seeks to prevent such materials from being readily
available to them.

The section also acknowledges the importance of free speech and expression and does not seek to restrict such
activities unnecessarily. Instead, it strikes a balance between the protection of young people and the right to free
expression, allowing for the sale and distribution of materials that are not obscene or harmful to young people.
However, the implementation of Section 293 has been controversial, with some critics arguing that it is too broad
and can be used to restrict legitimate forms of expression. Others have argued that it is too narrow and does not go
far enough to protect young people from exposure to harmful materials, especially given the proliferation of digital
media and the internet.

In recent years, the Indian government has taken steps to update and modernize the IPC, including Section 293, to
better address the challenges posed by new technologies and changing social norms. For example, in 2018, the
government introduced the Protection of Children from Sexual Offences (POCSO) Act, which provides additional
protections for children against sexual abuse and exploitation, including the use of digital media.

In conclusion, Section 293 of the Indian Penal Code is an important provision aimed at protecting young people from
exposure to obscene materials that can be harmful to their moral and social development. While there are
legitimate concerns about the scope and implementation of the section, it remains a vital tool in safeguarding the
well-being of young people in India.

Defining child pornography

In India, the term ‘child pornography’ has been defined under the Protection of Children from Sexual Offences Act,
2012 (POCSO). According to section 2(da) of the POCSO Act, child pornography is any kind of visual display of overt
sexual activity that engages a child. Such content may be an image, a video or any computer-generated picture
which cannot easily be differentiated from a real child. It includes all those images which shows a child to be
involved in such activities whether it is created, adapted or modified.

To be very specific, section 2(d) of the POCSO Act defines a ‘child’ to be any person who has not attained the age of
eighteen years.

On an international level, there is one Optional Protocol on the sale of children, child prostitution and child
pornography (OPSC) that deals with the issue of child pornography. According to Article 2 of the OPSC, child
pornography includes the depiction of a child involved in either real or simulated explicit sexual conduct as well as
revealing of sexual body parts of a child mainly with sexual motives.

Impact of child pornography

It is quite rare that sexual activity in child porn is consensual. So, if any image, video or any other content showing
sexually explicit conduct involving a child is created, it is very likely that real sexual abuse or harassment was caused
while making such material. Also, there are high possibilities that such abuse has been done more than just once.
More the demand for child porn increases, more such content is created, and hence, more crimes against children
increases.

This not only deteriorates the child victim’s mental and physical well-being, but also leaves a grave impact on
society. When such an abuse or molestation is committed with a child, he/she goes through a huge trauma and it
takes a lot to come out of it, but the act of pornography, i.e., posting or distributing that recording online aggravates
the situation and makes it impossible for that child to move on ever. Fear, humiliation, helplessness, lack of
confidence are some of the things that would follow that child forever because he/she knows that somewhere on
the internet those pictures or videos are circulating.

Under Protection of Children from Sexual Offences Act, 2012 (POCSO)

The POCSO Act makes the act of using a child for pornographic purposes punishable. Now what all acts constitute to
be usage of a child for pornographic purposes have been explained in section 13 of the Act. According to the said
section, any person who uses a child for the purpose of sexual gratification through any kind of media either printed
or electronic, no matter whether it was aimed for distribution or just personal use is said to have used the child for
pornographic purposes. It includes the display of a child’s sexual organs, indecent representation of a child, and
engaging a child in true or simulated sexual activity where penetration is not a mandatory condition.

Section 14 of the POCSO Act punishes any person committing an offence u/s 13 with an imprisonment for at least 5
years and fine. And if the person is convicted for the same offence again, then he would be punishable with
imprisonment for a minimum of 7 years and fine. It further provides that if a person is committing the offence of
using child for pornography along with offence given under sections 3 or 5 or 7 or 9 by getting himself involved in the
pornographic act, then such a person shall be punished under section 4 or 6 or 8 or 10 respectively in addition to
section 14 of the POCSO Act.

Furthermore, section 15 of the POCSO Act provides punishment for storing or possessing pornographic material that
involves a child in three different situations. Firstly, if it has been done to share such material so as to commit child
pornography then it is punishable with a minimum fine of Rs. 5000, and if such an act is repeated then with a fine
not less than Rs. 10,000. Secondly, if such storage or possession has been done to display or distribute it, then the
punishment is imprisonment for a term which may extend to 3 years, or with fine, or both.

However, the storage would be exempted from this offence if it was done for the purpose of reporting or using it as
evidence in court. Lastly, if the said pornographic material is possessed with an intention to use it for commercial
purposes, then the person would be punishable with imprisonment, the term of which would be between 3 years to
5 years, or fine, or both. And if the same is committed again, the punishment would be between 5 years to 7 years of
imprisonment and fine.

IO
 Introduction

In 2008, the Government of India passed the Information Technology (IT) Amendment Act, which aimed to update
and modernize India's cyber laws. One of the key provisions introduced in this amendment was Section 67B of the IT
Act, which deals with the punishment for publishing or transmitting obscene material in electronic form. This
provision has important implications for internet users and content creators in India, as it defines the legal
consequences of publishing or sharing offensive content online.

In this article, we will examine the provisions of Section 67B of the IT Act in detail, discussing its legal framework, key
terms, and punishments for violations. We will also explore the potential impact of this provision on internet users in
India and examine some of the controversies surrounding its implementation.

Legal Framework

Section 67B of the IT Act falls under Chapter XI of the Act, which deals with offences relating to electronic records.
This section was added to the Act in 2008, as part of the IT Amendment Act. The provision criminalizes the
publication or transmission of obscene material in electronic form, and provides for punishment for those found
guilty of such offenses.

Key Terms

To understand Section 67B of the IT Act, it is essential to first define some key terms used in the provision. These
terms include:

1. Obscene: The term "obscene" is not explicitly defined in the IT Act. However, the Supreme Court of India has defined
it as "something which is offensive to modesty or decency, and calculated to deprave and corrupt those whose
minds are open to such immoral influences." In other words, material that is sexually explicit, vulgar, or offensive in
nature can be considered obscene.
2. Electronic form: The IT Act defines "electronic form" as data, images, audio, or video that is stored, transmitted, or
received electronically. This includes content that is shared through the internet, mobile phones, or other electronic
devices.
3. Publisher: The term "publisher" refers to any person who publishes or distributes any material in electronic form.
This can include content creators, bloggers, social media users, and anyone else who shares material online.
4. Transmission: The term "transmission" refers to the act of sending or communicating any material in electronic form.
This includes sharing content via email, messaging apps, social media platforms, or any other electronic medium.

Punishment for Violation

Section 67B of the IT Act provides for punishment for those found guilty of publishing or transmitting obscene
material in electronic form. The punishment for such offenses includes imprisonment for up to five years and a fine
of up to 10 lakh rupees. Repeat offenders can face imprisonment for up to seven years and a fine of up to 10 lakh
rupees.

It is important to note that the punishment under Section 67B is in addition to any other punishment that may be
imposed under the Indian Penal Code (IPC) or any other law. For example, if an offense under Section 67B is
committed as part of a larger criminal act, such as stalking or harassment, the offender can face punishment under
both Section 67B and the relevant IPC sections.

Controversies Surrounding Implementation

While Section 67B of the IT Act was introduced with the aim of regulating offensive and obscene content online, its
implementation has been controversial. Some critics argue that the provision is too broad and can be used to
suppress free speech and expression online.
 One of the key criticisms of Section 67B is its vague definition of "obscene" material. The lack of a clear definition has
led to confusion and inconsistencies in its application, with some cases of seemingly harmless content being
penalized while other more explicit content is left untouched. This lack of clarity has also made it difficult for internet
users to understand what type of

The Information Technology (IT) Act of 2000, passed by the Indian Parliament, is the primary legislation that governs
all aspects of electronic communication and digital transactions in India. The Act was enacted with the objective of
providing legal recognition to electronic transactions and facilitating the growth of e-commerce in India. However,
the increasing use of digital media and communication platforms has also led to an increase in cybercrime and
cyberbullying. To address these issues, the IT Act was amended in 2008 to include Section 67B, which deals with the
punishment for publishing or transmitting sexually explicit material in electronic form.

In this article, we will discuss the various aspects of Section 67B of the IT Act, including its background, scope,
provisions, and penalties.

Background:

Section 67B was introduced in the IT Act in 2008 through an amendment. The amendment was made to address the
growing problem of cybercrime and cyberbullying, which had become prevalent due to the widespread use of
electronic communication and digital media platforms.

The amendment was aimed at curbing the dissemination of sexually explicit material in electronic form, which was
being used to harass, intimidate, and blackmail individuals. The provision was also meant to protect minors from
exposure to such material, which could have a detrimental effect on their mental and emotional well-being.

Scope:

Section 67B of the IT Act deals with the punishment for publishing or transmitting sexually explicit material in
electronic form. The provision covers a wide range of activities, including the creation, distribution, publication, and
transmission of such material.

The provision applies to all electronic communication and digital media platforms, including social media platforms,
messaging apps, email, and websites. It also applies to individuals, organizations, and entities that engage in such
activities.

Provisions:

Section 67B of the IT Act provides for the punishment of imprisonment for a term of up to five years and a fine of up
to Rs. 10 lakh for the following activities:

1. Publishing or transmitting sexually explicit material in electronic form with the intention to harass, intimidate, or
blackmail any person.
2. Publishing or transmitting sexually explicit material in electronic form that depicts a minor.
3. Publishing or transmitting sexually explicit material in electronic form that is invasive of the privacy of any person.
4. Publishing or transmitting sexually explicit material in electronic form that is in breach of confidentiality.
5. Publishing or transmitting sexually explicit material in electronic form that is in contravention of any law for the time
being in force.

The provision also provides for the punishment of imprisonment for a term of up to three years and a fine of up to
Rs. 5 lakh for the following activities:

1. Viewing or accessing sexually explicit material in electronic form that depicts a minor.
2. Creating or transmitting sexually explicit material in electronic form that depicts a minor.
3. Creating or transmitting sexually explicit material in electronic form that is invasive of the privacy of any person.
4. Creating or transmitting sexually explicit material in electronic form that is in breach of confidentiality.
5. Creating or transmitting sexually explicit material in electronic form that is in contravention of any law for the time
being in force.

Penalties:

The penalties prescribed under Section 67B of the IT Act are severe and serve as a deterrent to those who engage in
activities covered by the provision.

For the offence of publishing or transmitting sexually explicit material in electronic form with the intention to harass,
intimidate, or blackmail any person, the punishment is imprisonment for a term of up to five years and a fine of up
to Rs. 10 lakh.

For the offence of publishing or transmitting sexually explicit material in electronic form that depicts a minor, the
punishment is imprisonment for a term of up to five years and a fine of up to Rs. 10 lakh.

For the offence of publishing or transmitting sexually

As per section 67B of IT Act, whoever ___________(electronic form)____________

a. Publishes or transmits in any electronic form which depicts children engaged in sexually explicit act
b. Creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or
distributes material in any electronic form depicting children in obscene or indecent or sexually explicit
manner
c. Cultivates, entices or induces children to online relationship with one or more children for and sexually
explicit act
d. Facilitates abusing children online
e. Records in any electronic form form of own abuse or that of others pertaining to sexually explicit act with
children, shall be punished with imprisonment upto five years and with fine upto ten lakh rupees on first
conviction and in the event of second or subsequent conviction with imprisonment upto seven years and
with fine upto 10 lakhs.

CYBER APPELLATE TRIBUNAL

Introduction
Computers, the Internet, and ICT, or e-revolution, have transformed people’s lives in the twenty-first century. E-
communication has mostly replaced paper-based communication in recent years. As a result, new terms like the
cyber world, e-transaction, e-banking, e-return, and e-contracts have emerged. Aside from the good aspects of the
e-revolution, there is also a bad aspect of computers, namely, the internet and ICT in the hands of criminals, which
has turned into a weapon of crime. As a result, a new panel of members, known as Cyber Law, Cyber Space Law,
Information Technology Law, or Internet Law, was formed to address the issues of cybercrime in cyberspace.

Cyber legislation and the Information Technology Act of 2000, as amended in 2008, are being developed in India to
combat computer crimes. The Information Technology Act of 2000 is a law that establishes legal recognition for
transactions carried out via Electronic Data Interchange (EDI) and other forms of electronic communication. It is
India’s principal legislation governing cybercrime and electronic trade (e-Commerce). Electronic data interchange or
electronic filing of the information is referred to as e-Commerce.

The Information Technology Act of 2000, which took effect on October 17, 2000, was enacted to provide legal
recognition for transactions carried out through electronic data interchange and other forms of electronic
communication, also known as “electronic commerce,” involve the use of alternatives to paper-based methods of
communication and information storage, to make electronic filing of documents with government agencies easier,
and to amend the Information Technology Act of 2000.

The Internet network has vastly grown over vast geographic distances, allowing for fast communication between
even the most remote parts of the globe. Various global institutions see the need for rules to regulate this new
hemisphere as human activities in this limitless new universe continues to expand. The Information Technology (IT)
Act 2000 was established in India to keep up with the continuous flux. The IT Act was conceived and formed
according to the Model Law of the United Nations Commission on International Trade Law (UNCITRAL).

The Cyber Appellant Tribunal was created under the Information Act of 2000. The tribunal solely has appellant
jurisdiction, as its name implies. As a result, it has the ability to exercise its appellant jurisdiction over a judgment or
order made by the Controller of Certifying Authorities or the adjudicating official, both on the facts and in law. In
other words, it has the legal authority to investigate the decision or order’s accuracy, legality, and propriety. The
Central Government has created the country’s first and only Cyber Appellate Tribunal in line with the terms of
Section 48(1) of the Information Technology Act, 2000.

Establishment of the Tribunal (Section 48)

This Section explains how the Cyber Appellant Tribunal will be established. The central government will issue a
notification establishing one or more appellant tribunals. The Central Government also lists all of the subjects and
locations that come under the Tribunal’s jurisdiction in the announcement.

Composition (Section 49)

This Section explains that the Presiding Officer of the Cyber Appellate Tribunal, who will be nominated by the Central
Government, will be the sole member of the Cyber Appellate Tribunal. The appellant tribunal has been transformed
into a multi-member body. The Tribunal will henceforth be composed of a Chairperson and as many additional
members as the Central Government may designate by publication in the Official Gazette. The Central Government,
in collaboration with the Chief Justice of India, selects the Chairperson and Members of the Tribunal. The Tribunal’s
Presiding Officer is now known as the Chairperson.

Qualifications for appointment (Section 50)

Section – A person cannot be appointed as the Presiding Officer of a Cyber Appellate Tribunal unless he or she has
the following qualifications:
(a) Is, or has been, or is qualified to be, a Judge of a High Court; or

(b) Is or was a member of the Indian Legal Service, and now holds or has held a Grade I position in that service for at
least three years.

The Term of Office (Section 51)

Section – The Presiding Officer of a Cyber Appellate Tribunal serves for five years from the date of appointment or
until he reaches the age of 65, whichever comes first.

Resignation and removal (Section 54)

Section – The chairperson or a member of the cyber appellant tribunal might resign by writing to the federal
government and informing them of their decision. Provided, however, that the Presiding Officer shall continue to
hold office until the expiration of three months from the date of receipt of such notice, or until a person duly
appointed as his successor enters upon his office, or until the expiration of his term of office, whichever comes first
unless he is permitted by the Central Government to relinquish his office sooner.

The Central Government has the authority to dismiss the Presiding Officer of the Cyber Appellate Tribunal if there is
evidence of misbehaviour or inability. However, only after a Supreme Court Judge has conducted an investigation
and the Presiding Officer has been informed of the accusations against him and has had a sufficient opportunity to
defend himself. The method for investigating misbehaviour or incompetence of the Presiding Officer might be
regulated by the Central Government.

Finality of Orders (Section 55)

Section 55 of the Information Technology Act of 2000 prohibits judicial review of two matters: an order of the
Central Government designating any individual as the Chairperson of the CAT, and any procedure before a CAT
based solely on a flaw in the CAT’s constitution. This provision assures the smooth and uninterrupted operation of
the Tribunal by making the decision creating the CAT definitive and prohibiting judicial review of any Tribunal
proceedings based on a flaw in the Tribunal’s constitution.

Saff of the Cyber Appellant Tribunal (Section 56)

Section – All the staff, employees and other officers are provided by the central government, as it will think fit. All
the officers and employees will work under the superintendence of the chairperson. The central government will
prescribe the salaries, allowances and all other conditions of services of the employees and officers.

Appeal to Cyber Appellant Tribunal (Section 57)

Section – If a person is dissatisfied with the Controller’s or Adjudicating Officer’s decision, he or she may file a
complaint with the Cyber Appellate Tribunal, which has jurisdiction over the case. An order rendered by an
adjudicating official with the permission of the parties, however, is not subject to appeal to the Cyber Appellate
Tribunal. The individual must file, along with the specified fees, within 25 days after receiving the order from the
Controller or Adjudicating Officer. If the Tribunal is satisfied with the grounds for the delay in submitting the appeal,
it may hear it even after the 25-day period has passed.
The Cyber Appellant Tribunal shall transmit a copy of every order to all parties to the appeal as well as the
appropriate Controller or adjudicating official. The tribunal will also make every effort to resolve the appeal within
six months of receiving it.

In Chappan v/s Moidin Kutti, It was claimed that the presence of a superior and interior court relationship, as well as
the capacity of the former to review two judgments of the latter, are two requirements for appellant jurisdiction.

Power and procedure of the Cyber Appellant Tribunal (Section 58)

The Cyber Appellate Tribunal’s method and powers are laid forth in Section 58 of the Information Technology Act,
2000
Sub-clause (1) Section 58 states that the Cyber Appellate Tribunal is not bound by the Code of Civil Procedure, 1908,
but rather by the principles of natural justice and that the Cyber Appellate Tribunal, subject to the other provisions
of this Act and any rules, has the authority to regulate its own procedure, including the location of its hearings.
Clause (2) Section 58 stipulates that, for the purposes of executing its responsibilities under this Act, the Cyber
Appellate Tribunal shall have the same powers as a civil court under the Code of Civil Procedure, 1908, while trying
an action, in respect of the following matters:
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents or other electronic records;
(c) Receiving evidence on affidavits;
(d) Issuing commissions for the examination of witnesses or documents;
(e) Reviewing its decisions;
(f) Dismissing an application for default or deciding it ex parte;
(g) Any other matter which may be prescribed.
Clause (3) Section 58 states that any proceeding before the Cyber Appellate Tribunal is deemed to be a judicial
proceeding for the purposes of Sections 193 and 228 of the Indian Penal Code, and the Cyber Appellate Tribunal is
deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973.
In Union of India v. T. R. Verma, It is claimed that it is established law that courts must observe the law of natural
justice, which states that a party must be given the chance to present any relevant evidence on which he relies.
Evidence should be taken in the presence of the parties, and cross-questioning should be allowed.
 NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005
The Universal Declaration of Child Rights defines child, as “any human being under the age of eighteen years unless
the majority is acquired earlier by the legislation of the country.”
There are various laws in India which deal with protection of Child rights and one of such relevant law is Protection
of Child Rights Act, 2005.
This act was enacted by the Indian Parliament, which established the National Commission for the Protection of
Child Rights as a statutory body in 2007. The main aim of this body is to protect, promote and defend children’s
right across the country and that all laws in the country are in the consonance with the UN Convention on the Rights
of the Children.
This body works under the Ministry of Women and Child Development of the Central government.
As per this act the office of the Commission shall be at Delhi.
NCPCR consists of the following members-
1. Chairperson- person of who has an exemplary record of work in child welfare.
2. There are other six members,
i. two of which should be women
ii. the six members shall have experience in the following fields:
- Education
- Child health care, welfare or child development
- Juvenile justice or care of neglected or marginalized children or children with disabilities
- Who have worked towards rescue of children from child labour
- Who have worked towards child psychology or sociology
- Laws relating to children
The Chairperson and every member shall hold the office for a term of three years and no Chairperson or any other
member shall hold the office for more than two terms.
The salary and allowances of other members shall be prescribed by the Central Government.
The commission shall meet regularly at its office at such times as the chairperson thinks fit, but three months
shall not intervene between its last and the next meeting
All the decisions at the meeting of the Commission shall be taken by majority.
FUNCTIONS
1. The commission shall-
2. safeguard the rights of children from time to time and recommend measure for their effective implementation.
3. Inquire into the violations of child rights and recommend initiation of proceedings in such cases.
4. Help the children who all are affected by terrorism, communal violence, riots, natural disasters, domestic violence,
HIV/AIDS, trafficking, maltreatment, torture and exploitation, prostitution and recommend appropriate remedial
measures.
5. Look into the matter where the children need special care and protection, for example to help children of
prisoners, juveniles.
6. To study international treaties and to recommend govt. steps to be taken for their effective implementation.
7. Promote research in the field of child rights.
8. To spread awareness regarding literacy of children and to promote such things via way of media, seminars and
other available means.
9. Inquire into the complaints and take suo motu action regarding-
- Deprivation and violation of child rights
- Non-implementation of laws provided for protection and development of children
To do such other functions as may be needed for promotion of child rights
The commission while inquiring any matter shall have all the powers of a civil court trying a suit under the Code of
Civil Procedure, 1908, and shall have the following rights-
i. To summon and enforce the attendance of any person and examine him on oath
ii. Discovery and production of any document
 iii. To receive evidence on affidavits
iv. May demand copy of any document from any court or any office
v. May examine witness and documents
The commission also has power to forward any case to Magistrate having jurisdiction to try the case.
The commission has power to order-
i. Inquiry in the case of violation of child rights of a serious nature and may recommend the concerned
govt. to initiate proceedings against such concerned person or persons.
ii. Approach the SC or HC for directions, orders or writs as the Court may deem necessary
iii. Recommend the concerned govt. or authority for grant of such interim relief to the victim as it may
deem fit.

CONCLUSION

In a country where approximately 1,50,000 crimes are registered against children in an year and lakhs of them
remain unreported, it is very much necessary to have a body like National Commission for Protection of Child Rights,
to make sure that children remain safe and secure. And also to ensure that children are not pushed towards illegal
activities. This body also ensures that all the laws enacted in the country don’t go against rights of the children and
are in consonance with UN Convention of the Rights of Children. This body’s main aim is to make sure that every
child in the nation of India remains protected from crimes and lives a nourished life.
EXEMPTION OF CHILD FROM CRIMINAL LIABILITY

There is no proper definition of crime, but we can understand that it is an unlawful act that is forbidden by law and
punishable by the state. A violation of public rights and duties that affects the society as a whole such as murder,
rape, theft, robbery etc. Criminal law is a body that imposes punishments for the crimes committed.

Criminal law regulates society, protects the individual and the state and ensure the survival of its citizens. It is the
law that punishes the offender when a threat is brought to an individual or the society as a whole. When a person
commits a crime, it is deemed that a crime has been committed against society. This is because there is a possibility
of such crimes taking place again. Criminal law aims to prevent such crimes from happening in society. They are
punished to set an example on the society for them to understand the grievousness of the action and to ensure such
offences don�t take place in society again. To prevent such crimes from happening in the society which endangers
the human race.

There are two essential elements for an act to become a crime:

Actus Reus And Mens Rea. Actus Reus is the guilty act whereas Mens rea is the guilty mind. It includes motive,
intension or knowledge of the action. When these elements are combined, we say a crime has taken place. Only if an
action takes place without the intension or if there is just an intension but no action, then it is not a crime.

Children are generally regarded as humans who are incapable to commit any crime. A child means every human
being below the age of 18 years unless, under the law applicable to the child, the majority is attained earlier.[1] But
different countries have the liberty to set an age limit to determine a child.

In India, a person below the age of 18 is considered as a child, this is because they don�t have the mental capacity
of an adult.[2] Hence, a different legal body regulates their offences, the Juvenile Justice (care and protection) Act
2000. A child is an innocent person. He has not attained an age where he can differentiate between what is good or
evil. He doesn�t have the ability to form a mens rea that is mandatory for an act to categorized as a crime. Yet,
there is a different age bar set, to differentiate the maturity level of different age group and their level of
understanding.

Children up to the age of seven are given absolute immunity. Children between the age group of seven to twelve are
given the benefit of doubt, according to their understanding in the situation. Offences done by children between the
age group of twelve to eighteen are regulated by the Juvenile Justice (Care and Protection of Children) Act 2015.

The maximum sentence for the age between 12 to 15 is a maximum of one year of imprisonment and the maximum
sentence for the age between 16 and 17 is a maximum of two years of imprisonment. After the incident of Delhi
gang rape, if a child above the age of 16 commits a heinous crime he will be considered as an adult during the trial.

Section 82: Absolute immunity

Section 82 of the Indian Penal Code, 1860 under Chapter IV relating to ‘General Exceptions’ provides that any act of
a child under 7 years of age is not an offence, “Nothing is an offence which is done by a child under 7 years of age”.
Thus, no child under 7 years of age can be held criminally responsible. As the child below such an age is incapable of
distinguishing between right and wrong, the law confers absolute immunity from criminal prosecution, trial and
conviction to such child. While explaining the reason for exempting infants from criminal liability, Blackstone has said
that infancy is a defect of understanding and therefore, the infants under the age of discretion should not be
punished. However, it is pertinent to note that the age of discretion varies from country to country. Section 82 has a
wide scope and the protection provided to infants extends not only to offences under the I.P.C. but under local and
special laws as well.

Section 83: Qualified or partial immunity

Section 83 of the I.P.C. provides partial immunity from criminal liability to a child who is above 7 and under 12 years
of age. It provides that: Nothing is an offence which is done by a child above 7 years of age and under 12, who has
not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that
occasion.

Ingredients of Section 83

1. The act is committed by the child.

2. The child is above 7 years of age and below 12 years of age.
3. The child has not attained sufficient maturity of understanding to judge the nature and consequences of
his conduct on that occasion.
This means that a child between 7 to 12 years of age will be absolved from criminal liability only if it can be proved
that on the date of commission of the offence, the child had not attained sufficient maturity of understanding to
judge the nature and consequences of his conduct. To find out as to whether the child has attained sufficient
maturity of understanding, the nature of the act, the conduct of the child before and after the act, his behaviour,
and conduct in court are relevant considerations.

Example: A, a child aged 10 years goes to his friend B’s house and picks up his mother’s silver bracelet worth Rs.
1000 which was lying on the table and immediately sold it for Rs. 500 and misappropriated the said money. The
conduct of A shows that he was sufficiently mature to understand the nature and consequences of his actions and
therefore was guilty of theft under Section 378 of I.P.C.

Section 82 of the Indian Penal Code states that Nothing is an offence which is done by a child under seven years of
age.
This section is developed on the idea of �doli incapax�, a Latin phrase that means incapable of doing any harm.
This is because children who have committed a and who are under the age group of 7 years are unable to have the
mens rea to understand the nature and consequence of his actions; to commit any crime. He cannot distinguish
between what is right and what is wrong.

There is only one important element to this section, that is that the child must be below the age of seven. The
burden of proof lies on the party who claims the exception, the defendant. This is an absolute exception, no
evidence can prove the child guilty. In a case, it was held that merely he evidence of age would be conclusive proof
of the innocence of the accused child and by that fact, itself be free of any charges.[4]

In the case of Marsh v. Loader, 1863

The defendant caught a child in the act of stealing a stick from his territory.
It was ruled that since the child who had not attained the age of seven, the child was unable to understand the
consequences of his action. Hence, he was declared not guilty.

Section 83 of the Indian Penal Code[5] states that:

Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

This section is developed on the idea of doli capax a Latin phrase that means capable of a wrongdoing. This
exception can only be claimed after fulfilling the essential elements.

1. The child must be between the age group of seven to twelve.

2. The child must have not attained the maturity to understand the consequence of his act.
3. The incapacity to understand must be present during the act.

It has to be proven that the accused is under the age of 12 and does not have sufficient maturity to under the
consequences of his actions. If there is no proof or circumstance that is brought under the notice of the court, then it
is presumed that the accused child intended to commit the crime.
This section gives a qualified immunity. The burden of proof lies on the child to prove that he was between the age
of seven and twelve and that during the act, he was unaware of the consequences. The prosecution needs to prove
that the child committed the act with full awareness of its consequences. That a reasonable mens rea was present
with actus reus. If a child of age 8 committed theft and was aware his action would lead to consequences, then he is
liable. Similarly, if a child of age 11 commits a theft but was unaware of the consequence of his actions he is not
liable.

The liability of the child depends on his understand and not his age. If a child is mature to understand the
consequences that he did a wrong act, then he is liable for that offence. It depends on his mental capacity to
understand the grievousness of his act. The degree of malice also plays a significant importance in this section,
because a higher degree of malice requires a higher understanding of the consequences of one's actions. This
section aims to contemplate that the child should not know the nature and consequences of his actions.

In the case of Hirelal Mallick v. State of Bihar, 1977[6]

A boy of 12 years along with his two elder brothers, murders the deceased because of a fight that happened
between the deceased and their father. They struck a sword at the throat of the deceased and fleas from the crime
scene.

It was ruled that the child was aware of his actions and the consequences. There was no evidence proving that the
child did not have the maturity to understand the grievousness of his actions.

Hence, he was convicted under Section 326 of the Indian Penal Code.

In the case of Ulla Mahapatra v King, 1950[7]

An 11-year-old boy threatens the victim, saying that he�ll cut him into pieces while advancing towards him with a
knife. Later, the child kills the victim.
It was held that from the boy�s conduct, he was aware that he would inflict hurt to the victim by giving cuts with
the knife. He was aware of the meaning of his words and that it was a threat and there was a weapon that fulfils the
elements of assault. Thus, this proves that he had the intension of hurting the victim. He was aware of his actions
and the consequences of his action. Hence, it was held that he was liable for murder.

In the case of Abdul Sattar v. The Crown, 1947

Some boys of 12 years broke open the locks of a shop and stole some goods.
It was held that the accused were aware of their actions. The nature of break opening the shop proved that they had
the intension of stealing the goods.
Hence, they were found guilty.

In the case of Kakoo vs The State Of Himachal Pradesh[8]

The accused was a 13-year-old boy who committed rape on a 2-year-old girl child.
It was held that the accused was fully aware of his actions. Hence, he was sentenced to one-year rigorous
punishment along with a fine of Rs. 2000 which was paid to the victim�s mother. The sentence was brought down
considering section 83, and that he cannot be treated as an adult, thus, cannot be punished like one.

If a child is at the age of seven when he committed the crime, it would depend on the nature of the crime and his
maturity to understand his actions. If he meets all the elements then he can be convicted or else he can claim the
defence of section 82 and section 83[10]. This is based on the principle of quia militia actatem which means �malice
makes up for the age�.

If an adult engages a child below 12 years to commit a crime, he�ll as liable as though he had attempted the crime
himself. He�s an abettor. For example, X an adult leaves a loaded gun on the table with Y, a child. Y accidentally
fired it at victim A, then Y will not be held liable but X will be liable for negligence.
In India it is in the best interest of the child to have a separate legal system and to separate them from adults for the
benefit of children.

International perspective and the Juvenile Justice (Care and Protection of Children) Act, 2015
United Nations Convention on Rights of the Child (UNCRC)
Article 40(3)(a) of the United Nations Convention on Rights of the Child(UNCRC) provides that the state parties shall
establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.
It also provides that the states shall seek to promote the establishment of laws, procedures and institutions which
shall specifically apply to those children who are accused of any offence including measures for dealing with such
children without resorting to judicial proceedings.