INSTITUTE OF LAW, NIRMA UNIVERSITY

SUBJECT: OFFENCES AGAINST CHILD JUVENILE

CODE: 2CRM933

SUBMITTED TO: DR. MUKTI JAISWAL

SUBMITTED BY: AAYUSH SHIVAM

ROLL NO.: 18BBL062

SEMESTER: IX

RESEARCH PAPER

TOPIC: POCSO ACT, 2012 – A CRITICAL ANALYSIS.

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POCSO ACT, 2012 – A CRITICAL ANALYSIS

ABSTRACT:
“There can be no keener revelation of a society’s soul than the way in which it treats its
children.”– Nelson Mandela

India has become the scene of some shocking number of abuses involving child sexual
exploitation, as well as the situation is getting worse every day. Although statutes have
already been created to successfully combat this widespread socio-legal threat, the Indian
government is finding it challenging to put those laws into practise, which makes it
challenging to stop child sexual abuse on a big scale. The POCSO Act, which was enacted
into law in 2012 and contains a number of the strictest laws and the most severe penalties,
marked a turning point in the legal system. All of us find absolutely exhausted while
engaging with only a child abuse case at such a busy outpatient department. Although being
in effect, the "Protection of Children from Sexual Offences Act, 2012" has several
shortcomings that render it complicated to implement. Considering the positive aspects of the
conduct, this article makes a point about the social and legal dilemmas we face every day.
According to the Code, as child includes anyone under the age of 18. It really specifically
specifies that perhaps the child's gender would both be male or female. Therefore,
irrespective of the victim's sexuality, the laws relate to anybody under the age of 18. This
research article simply wishes to emphasize the methodologies and laws which had already
been adopted by the Honorable Supreme Court of India to effectively eradicate child sexual
abuse throughout general, as well as the child eco-friendly strategies that have been
incorporated, as well as the safeguards of Fastrack Courts, In-Camera Deliberations for the
hidden deliberations and court hearing for the child victims, and the incarceration regulations
against the vicious offenders. The integrity and ethnicity of the child population at large will
end without child sexual abuse and certain other horrific kinds of exploitation are effectively
and fundamentally stopped.

Literature Review
This review of literature sets the context of this study. It situates this research paper in several
relevant bodies of literature: (a) Indian Criminal Law for child Sexual abuse. (b) Case laws

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regarding prosecution of adult sexual offenders of children. (c) Relevant provision of the
POCSO Act.
HITABHILASH MOHANTY (2021) Known as the POSCO Act, with reporting on
Prevention of Sexual offences on children, evidence recording, investigation, and trial
procedures carried out by Special Courts asked to handle cases pertaining minors in the
Philippines, this comprehensive law safeguards children from sexual assault, sexual
harassment, and pornography while also ensuring that the child's interests are protected at
every stage of the judicial process.
MICHAEL REUBEN, FAUZIA MOHAMMAD, FELICIAN MUTASA (2021) the study
found that community-based Child Protection Mechanisms can make a difference in the fight
against child sex abuse. “Improved access to services on sexual violence against children;
increased reporting to the police; better handling; better reporting of sexual violence cases to
the police and social welfare officers; and better operating to community-based child
protection mechanisms; all of these outcomes have resulted from the interventions. It has also
enhanced case management and strengthened cooperation between players in Rambo district
as a result of the initiatives. Rambo’s district community-based child protection mechanisms
interventions are being hindered by a lack of finances and insufficient knowledge and skills.
That’s why researchers say it’s important to engage in community child protection systems,
such as providing financial resources and training for community members, to prevent sexual
abuse of children.
MAYANK TIWARI (2020) Protection of Children from Sexual Offenses Act (POCSO),
that also brought in force on November 14, 2012, contains child pornography including
sexual abuse of children through its list as prohibited offences. The Act's 46 additional
clauses now address children's crimes that had not been reported earlier underneath the Indian
Penal Code (IPC). Criminal consequences for severe penetrative sexual assault now also
cover abuses committed by those in positions of responsibility or power, notably public
employees or law enforcement.
RENU RENU, GEETA CHOPRA (2019) Child sexual abuse (CSA), the most horrifying
crime against minors, is frequently committed in secret. The majority of times, this offence is
not recorded. An individual's life is affected by CSA in a significant way. As is now
understood, toxic stress can harm a child's emotional health forever. The emphasis of this
investigation is CSA research in India. The POCSO Act (Protecting Children from Sexual
Offenses) was passed in 2012. There are many difficulties involved in applying POCSO. The
paper goes into some length on research on POCSO and covers subjects including
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compulsory reporting, consenting sex, doctors' preparedness to treat CSA victims, and the
role of special courts under POCSO.

INTRODUCTION:

“Child is any person Below the age of 18 years of age” .

A child is the purest and innocent creation of God, untouched by any form of materialistic
and worldly manipulations, misdeeds and social evils. However, the human race has
disgraced itself to the extent that even the most purest creation of god, children are not spared
by delinquent and felonious things. Sexual offences against children are one of the most
barbaric crimes prevalent against the human race. Sexual offences against today are
increasing at a distressing rate all over the world. India is among the top five countries of the
world facing the highest rate of sexual offences involving children. Fifty three percent of
children in India face some form of child sexual abuse.1 This rate is increasing with each
passing day and the existing laws have failed to create any form of deterrence towards the
commission of such heinous offences.
Several Provisions like Sec. 375 (Rape), Sec. 377 (Unnatural offences), Sec. 354 (Outraging
the modesty of a women) etc. were contained in the Indian Penal Code, 1860. However, these
provisions were not free from lacunas. Thus, a need was felt for a standalone statute dealing
with sexual offences against children. Consequently, India became a signatory to United
Nations Conventions on the Rights of Child (UNCRC) and passing a legislation against child
sexual offence became all the more important. This resulted in passing of The Protection of
Children from Sexual Offences Act, 2012. This Act contains elaborate provisions making
sexual harassment punishable and establishment of special courts for dealing with child
sexual offences including victim-friendly procedures. The very inadequacy of Indian Penal
code and absence of any stringent legislation for effectively addressing and tackling heinous
crimes such as sexual exploitation and sexual abuse of children birthed the commencement of

1
Breaking-the-silence-child-sexual-abuse-in-india;hr (14th August, 2014) Human Rights
Documents online. Available at: https://doi.org/10.1163/2210-7975_hrd-2156-3024.

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POCSO Act, 2012 as the government establishments was to protect the children from
offences of sexual assault, sexual harassment & pornography and to facilitate adequate legal
machinery by establishing special courts for trial of such offences and matters incidental
connected with child sexual abuse crimes. This was in due compliance of Article 15 of the
Constitution of India which mandates the states to protect the children of this nation and in
lieu of United Nations Conventions on the Rights of the Child which prescribes the set of
standards to be followed by state parties in securing the best interest of the child. Though this
legislation is general in nature and applies to everyone irrespective of their caste, creed,
gender, religion etc. particularly, it punishes the offenders committing crimes against the
children in rural as well as urban areas of the country.

SOME FACTS ABOUT CHILD ABUSE CASES IN INDIA:

1. Sexual abuse and trafficking are highly prevalent and are among the serious problem
of India.
2. A study on adolescents in Kerala showed that 36% of boys and 35% of girls had
experienced sexual abuse.
3. A study was conducted by the Government of India on 17220 children and
adolescents. The study reported that every second child in the country was sexually
abused.
4. Highest sexual abuse was reported in Assam (57.27%) followed by Delhi (41%),
Andhra Pradesh (33.87%) and Bihar (33.27%).
5. Uttar Pradesh State has reported the highest number of sexual abuse cases.
6. 50%of the abusers were known to the child. The incidents took place in a position of
trust and responsibility.
7. The Children between the age group of 5 – 12 faced higher level of abuse. Most of the
cases are largely unreported.

AREA OF RESEARCH:
The area of research is confirmed to India as the study deals with the Protection of Children
against Sexual offences (POCSO) Act, 2012. The researcher has specifically analyzed the
POCSO Act in detail.

SIGNIFICANCE OF THE RESEARCH:

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The case of child sexual abuse is increasing at an alarming rate. India is among the top five
countries having highest number of child abuse cases. As far as the sensitivity and
seriousness of this issue is concerned, the criminal law in India was inadequate before
passing the POCSO Act. The Law Commission appealed in its 172 nd Law Commission
Report has reviewed complete law with sexual offences after Sakshi Vs. UOI case 2. The Law
Commission appealed for various kinds of amendments dealing with the subject. The law was
inadequate to deal with sexual offences involving children. In 2012, the POCSO Act was
passed with a view to protect the children from sexual exploitation. As, there was the need for
the separate act. The present paper in this regard will deal with the POCSO in detail and the
challenges and controversies related to it.

OBJECTIVES OF THE RESEARCH:

1. Explains the law on child sexual abuse and its implication on investigation process
and collection of evidence involving agencies like Police, doctors and courts.
2. To study the impact of POCSO Act after its enactment and enforcement.
3. To assess the contribution of POCSO Act in solving the cases of child sexual abuse.
4. Explains change in law related to evidence in order to make the law more child
friendly which will ensure that more and more cases of child sexual abuse are
reported.
5. Suggests ways in which the various NGOs and social workers can work more
effectively in this regard.

RESEARCH QUESTIONS:
1. The primary research question is whether the Criminal law of our country adequate to
deal with the cases of sexual offences involving children even after the
implementation of POCSO, 2012?
2. Secondly various agencies like police, Doctors and Courts effective enough to impart
justice to victims?
3. The problem identification is a step to solve and discuss any problem. The
fundamental question in this research is related to whether the Criminal Law of India

2
Sakshi v UOI, AIR 2004 SC 3566.

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is adequate to deal with the cases of child Sexual abuse after the implementation of
the said act.

AN OVERVIEW OF THE ACT:

To deal with child sexual abuse cases, the Government has brought in a special law, namely,
The Protection of Children from Sexual offences (POCSO) Act, 2012. The Act has come into
force with effect from 14th November, 2012 along with the Rules framed thereunder.
The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from
the offences of sexual assault, sexual harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation & speedy trial of offences
through designated Special courts.
The said Act defines a child as any person below eighteen years of age, and defines different
forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual
harassment and pornography, and deems a sexual assault to be aggravated under certain
circumstances, such as when the abused child is mentally ill or when the abuse is committed
by a person in a position of trust or authority vis-à-vis the child, like a family member, police
officer, teacher, or doctor. People who trafficked children for sexual purposes are also
punishable under the provisions relating to abetment in the said Act. The said Act prescribes
stringent punishment graded as per the gravity of the offence, with a maximum term of
rigorous imprisonment for life, and fine.
In keeping with the best international child protection standards, the said Act also provides
for mandatory reporting of sexual offences. This casts a legal duty upon a person who has
knowledge that a child has been sexually abused to report the office; if he fails to do so, he
may be punished with six months imprisonment and/or a fine.
The said Act also casts the police in the role of child protectors during the investigative
process. Thus, the police personnel receiving a report of sexual abuse of a child are given the
responsibility of making urgent arrangements for the care and protection of the child, such as
obtaining emergency medical treatment for the child and placing the child in a shelter home,
should the need arise. The police are also required to bring the matter to the attention of the
Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may

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then proceed where required to make further arrangements for the safety and security of the
child.
In accordance with the aforementioned Act, a child must have a medical evaluation in a way
that will incur them least amount discomfort as feasible. Inside the instance of a female kid, a
female doctor must conduct the inspection there in sight of the parental or another adult the
child trust.
This aforementioned Act establishes Special Courts to hold child-friendly trials behind closed
doors without disclosing the child's identification. Therefore, the child could very well give
testimony with a responsible adult or another trusted adult present and it may seek support
from a special-educator, interpreter, or other professionals. In addition, the child is not going
to be called to testify in Court repeatedly and may testify via video links rather than in
person. The aforementioned Act moreover mandates that a case of child sexual abuse be
resolved within a year of the day the offence was reported. Additionally, law stipulates that
perhaps the Special Courts will decide how much Compensation should indeed be given to a
kid who has already been abused sexually in order for it to be put toward the child's
rehabilitation & medical care.
The stated Law defines essentially all existing types of sexual abuse against children as
criminal offences and authorizes the police, judicial system, and child protection apparatus as
partners in gaining Justice for a sexually abused kid. The POCSO Act also promotes children
who have suffered sexual abuse to come forward & seek justice for the anguish as well as
support in resolving their trauma by creating a child-friendly court process. The said Act will
eventually offer a system to identify and Punish individuals who exploit and prey on the
innocence of children and also serve as an effective deterrence while minimizing the rates of
these crimes.
Every Government of states must actively participate in the implementation of the said Act.
According to Section 39 of the aforementioned POCSO Act, the Government of states must
establish rules regarding the utilization of non-governmental organizations, specialists,
professionals, and people with training in psychology, social services, mental & physical
health, and development of children to assist the child during the trial & pre-trail stages.
The POCSO Act prescribes the following sexual offences against Children:
1. Penetrative Sexual Assault
2. Trafficking of Children for sexual abuse
3. Aggravated Penetrative sexual Assault
4. Sexual Assault
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5. Child Pornography
Some of the important provisions of POCSO Act are as follows –
1. The Police shall, inside of 24 hours of collecting a complaint of abuse of child or
indeed any instance connected to it, submit the issue Under Child welfare Committee
notice.
2. Thus, order to prevent the child from receiving a reprimand, the police officers
responsible for the investigation must also be dressed appropriately when taking that
child's testimony.
3. Statement of Child related to the crime must be recorded in the presence of the Person
whom he/she trusts.
4. For Collection of Forensic evidence, the medical examination of the child should only
be conducted by the lady doctor in presence of a person that the child trusts.
5. Under the said Act, Special courts have been set up to conduct speedy trials.
6. Duty of these courts that they will not disclose the identity of the child and the child
will not be exposed to the accused while recording the statement.
7. The child will not be asked to repeat his/her testimony again and again and he/she can
give his/her testimony through video also.
8. It should be noted that the case should not get delay and are disposed of within a year
from the date of being it reported.
9. If the child needs any assistance, an interpreter, translator, special educator or any
other expert should be present in court.
10. Child of family should be awarded compensation for the medical treatment and
rehabilitation of the child.

IMPORTANT PROVISIONS OF THE ACT:

 POCSO Act defines child as any person below the age of 18 years.3
 5 types of Sexual offences against children under POCSO Act. These are: penetrative
Sexual Assault; aggravated Penetrative Sexual Assault; Sexual Assault; and Sexual
harassment,4
 Abetment of an offence or an attempt to commit an offence is also punishable under
the Act,5
3
Section 2 of POCSO Act, 2012.
4
Sections 3, 5, 7, 9 & 11 of POCSO Act, 2012.
5
Section 16 of POCSO Act, 2012.
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 Using a child for pornographic purposes such as representation of the sexual organ of
a child, usage of a child engaged in real or stimulated sexual acts, the indecent or
obscene representation of a child is an offence under POCSO Act and is punishable,6
 Special Court is a court to be set up under section 28 of the POCSO Act for providing
speedy trial and to try the case in a child friendly atmosphere.7
 The Special Court shall complete the trail within a period of one year from the date of
taking cognizance of the offence.8

SEXUAL OFFENCES RECOGNIZED UNDER THE POCSO ACT AND

PUNISHMENTS FOR THOSE OFFENCES:
(Comparative Overview of 2012 Act and 2019 Amendment Act)
 Penetrative Sexual Assault: Under the Act when a person Commits Penetrative
Sexual Assault if he: (i) penetrates his penis into the vagina, mouth, urethra or anus of
a child or (ii) makes a child do the same, or (iii) inserts any object into the child’s
body, or (iv) applies his mouth to a child’s body parts. The punishment for such
offence is imprisonment between seven years to life, and a fine. The Bill increases the
minimum punishment from seven to ten years. It further added if a person commits
penetrative sexual assault on a child below the age of 16 years, he will be punishable
with imprisonment between 20 years to life, with a fine.
 Aggravated Penetrative Sexual Assault: Act defines certain actions as Aggravated
Penetrative Sexual Assault when includes cases when a police officer, a member of
armed forces, or a public servant commits penetrative sexual assault on a child. It also
covers cases where the offender is a relative of the child, or if the assault injures the
sexual organs of the Child or the child becomes pregnant, among others. The Bill adds
two more grounds to the definition of aggravated penetrative sexual assault. These
include: (i) assault resulting in death of child, and (ii) assault committed during a
natural calamity, or in any similar situations of violence. Currently, the punishment
for aggravated penetrative sexual assault is imprisonment between 10 years to life,
and a fine. The Bill increases the minimum punishment from ten years to 20 years,
and the maximum punishment to death penalty.

6
Section 13 of POCSO Act, 2012.
7
Section 28 of POCSO Act, 2012.
8
Section 35 of POCSO Act, 2012.
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 Aggravated Sexual Assault: Under the Act, Sexual Assault includes actions where a
person touches the vagina, penis, anus or breast of a child with sexual intent without
penetration. Aggravated Sexual Assault includes cases where the offender is a relative
of the child, or if the assault injures the sexual organs of the child, among others. The
Bill adds two more offences to the definition of aggravated sexual assault. These
include: (i) assault committed during a natural calamity, and (ii) administrating or
help in administering any hormone or any chemical substance, to a child for the
purpose of attaining early sexual maturity.
 Pornographic purposes: Under the Act, a person guilty of using a child for
pornographic purposes if he uses a child in any form of media for the purpose of
sexual gratification. The Act also penalizes persons who use children for
pornographic purposes resulting in sexual assault. The Bill defines child pornography
as any visual depiction of sexually explicit conduct involving a child photograph,
video, digital or computer-generated image indistinguishable from an actual child. In
addition, the bill enhances the punishment for certain offences as shown below in the
table.
TABLE: PUNISHMENT FOR OFFENCES FOR USING CHILD FOR PORNOGRAPHIC
PURPOSES

Offence POCSO Act, 2012 Amendment Act, 2019

Use of child for Max.: 5 Years Min.: 5 Years
pornographic purposes.
Uses of child for Min.: 10 Years Min.: 10 Years (in case of
pornographic purposes Max.: Life Imprisonment child below 16 years: 20
resulting in penetrative years)
sexual assault. Max: Life Imprisonment.
Use of child for
pornographic purposes Life Imprisonment Min.: 20 Years
resulting in aggravated Max.: Life Imprisonment, or
penetrative sexual assault. death
Use of child for
Pornographic purposes Min.: 6 Years Min.: 3 Years
resulting in sexual assault Max.: 8 Years Max.: 5 Years

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Use of Child for

pornographic purposes Min.: 8 Years Min.: 5 Years
resulting in aggravated Max.: 10 Years Max.: 7 Years
sexual assault
NOTE: Punishment for using child for pornography purposes resulting in any form of sexual
assault is in addition to minimum five years for use of child for pornographic purposes.

 Storage of Pornographic material: The Act penalizes storage of pornographic material

for commercial purposes with a punishment of up to three years, or a fine, or both.
The bill amends this to provide that the punishment can be imprisonment between
three to five years, or a fine, or both. In addition, the bill adds two other offences for
storage of Pornographic material involving children. These includes: (i) failing to
destroy, or delete or report pornographic material invoving a child, and (ii)
transmitting, displaying, distributing such material except for the purpose of reporting
it.

PROCEDURES FOR REPORTING OF CASES UNDER THE ACT:

 Reporting of offence to the SJPU or the local Police.9
 In case, child is in need, of care and protection, SJPU/local police to provide such care
within 24 hours of the report.10
 Obligation of media, studio and pornographic facilities report cases to SJPU/local
police.11
 Failure to report commission of offence punishable with Imprisonment of 6 months or
fine or both.12
 Failure to record an offence also punishable with imprisonment of six months or with
fine or both.13
 Failure to report a person, who is in charge of any company or an institution, in
respect of offences committed by subordinate under his control, also punishable with
imprisonment of 1 year and fine.14
9
Section 19 of POCSO Act, 2012.
10
Section 19(5) of POCSO Act, 2012.
11
Section 19(6) of POCSO Act, 2012.
12
Section 20 of POCSO Act, 2012.
13
Section 21(1) of POCSO Act, 2012.
14
Section 21(1) of POCSO Act, 2012.
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 Failure to report not punishable in case of a child.15

 False complaint against any person with malicious intent punishable with
imprisonment of 6 months or with fine or both.16
 False complaint against child, punishable with imprisonment of 1 year or with fine or
with both.17
 No civil or criminal liability for giving information in good faith.18
 Media not to disclose the identity of child, except when permitted by the special
court19
 Identity includes: names, address, photograph, family details, school, neighborhood or
any other particulars which may lead to disclosure of identity of the child.
 Punishment in case of contravention is important for not less than 6 months which
may extend to one year.

ANALYSIS OF INDIAN CRIMINAL LAW:

Out of every one of five children worldwide under 18 years of age call India homeland,
which would be estimated to have 430 million youngsters. 20 Still start off life with enormous
obstacles to overcome. Indian children frequently experience starvation, ignorance, slavery,
compulsory Labour, substance abuse problems, sexual assault, and pornographic material,
among other issues.21 Children sexual abuse refers any psychological or physical harm done
to any child, typically by the person whom the child have a faith or confidence or trust. 22 For
a sexual stimulation or delight, the individual utilizes the child. Another national survey
carried out by ‘The ministry of Women and Child Development’ 23 characterized sexual
15
Section 21(2) of POCSO Act, 2012.
16
Section 21(3) of POCSO Act, 2012.
17
Section 22(1) of POCSO Act, 2012.
18
Section 19(7) of POCSO Act, 2012.
19
Section 23 of POCSO Act, 2012.
20
The Planning Commission, Government of India, Report of the Working Group on Child
Rights for the 12th Five Year Plan (2012–2017),
http://planningcommission.nic.in/aboutus/committee/wrkgrp12/wcd/wgrep_child.pdf (Last
accessed 20, November, 2022), p. 8
21
United Nations Children’s Fund, The Situation of Children in India – a profile, May 2011,
http://www.unicef.org/india/The_Situation_of_Children_in_India_-
__A_profile_20110630_.pdf ( Last accessed 20, November, 2022).
22
The Problem of Child Sexual Abuse in India Laws, Legal Lacuna and the Bill – PCSOB-
2011, http://medind.nic.in/jal/t12/i2/jalt12i2p170.pdf (Last accessed November 20, 2022)
23
Ministry of Women and Child Development, Government of India, National Study on
Child Abuse: India 2007, 2007, http://wcd.nic.in/childabuse.pdf
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assault includes forcing children to sexually harass or expose his or her private areas when
getting photographed in a naked position. Almost one out of almost three rape instances,
young children is indeed the victim, according to a UNICEF report well after the 2012 Delhi
gang rape (Nirbhaya case), and all these incidents continue rising alarmingly. 24 Yearly, 7200
children, mainly infants, were raped, which is an extremely significant problem. Prior to May
2012, some parts of the Indian Penal Code that engage in sexual crimes were also extended to
cases of sexual abuse, which led to grave injustices because the laws were not sufficiently
strong to apply to such circumstances. Whenever laws addressing adults were used in
situations involving child sexual abuse, many issues were raised. In order to address these
issues, the parliament passed the POCSO Act in May, 2012. 25 Several types of child sexual
abuse are considered distinct offences under this statute, and offenders face unique penalties.
Prior until now, there had been no law that specifically specified any non-penetrative sexual
act against boys. This proposed legislation has indeed established some rules regarding how
police and judicial officials should handle victims. For combat the problems, special child
courts have also been established; nevertheless, it is currently unclear how effectively these
rules will be implemented. This same issue of enforcement has severely impeded the nation’s
efforts to safeguard minors from sexual abuse. Additionally, the National Commission for the
Protection of Child Rights, which has been formed as an autonomous body in 2007, makes
sure that all of these rules, regulations, and initiatives are in accordance with the child rights
guaranteed by the UN Convention on the Rights of the Child and the Indian Constitution. 26
The Commission has also been tasked with monitoring the POSCO Act’s execution.
MEDICAL EXAMINATION UNDER SECTION & OF POCSO ACT:
As per section 164A of CrPC:
 In case of girl child, medical examination by lady doctor & should be done in the
presence of parents,
 In case parents of the child cannot be present, medical examination to be conducted in
the presence of a woman nominated by the head of the medical institution
Section – 164 A of CrPC. – Medical examination of the victim of rape.

(Last accessed November 20, 2022) p. 1

24
UNICEF, UN in India condemns the gang rape of a student in New Delhi, December 31,
2012, http://www.unicef.org/media/media_67097.html (Last accessed November 20, 2022).
25
http://wcd.nic.in/childact/childprotection31072012.pdf (Last accessed November 20, 2022)
26
Home, National Commission for the Protection of Child Rights, http://www.ncpcr.gov.in
(Last accessed November 20, 2022.)

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The registered medical practitioner, to whom such woman is sent shall, without delay,
examine her and prepare a report of his examination giving the following particulars, namely:
 Name & address of the woman and of the person by whom she was brought;
 The age of women;
 The description of material taken from the person of the women for DNA profiling;
 Marks of injury, if any, on the person of the women;
 General medical condition of the women;
 Other material particulars in reasonable detail.
 The report shall state precisely the reasons for each conclusion arrived at.
 The report shall specifically record that the consent of the woman or of the person
competent to give such consent on her behalf to such examination had been obtained.
 To exact time of commencement and completion of the examination shall also be
noted in the report.
 The registered medical practitioner shall, without delay forward the report to the
investigation officer who shall forward it to the Magistrate referred to in section 173
as part of the documents referred to in clause (a) of sub-section (5) of that section.

INTRODUCTION OF DEATH PENALTY

While introducing the The Protection of Children from Sexual Offences (Amendment) Bill,
2019 in the Lok Sabha27, it was noted in the statement and object of the Bill that in the recent
past incidences of child sexual abuse cases demonstrating the inhumane mind-set of the
abusers who have been barbaric in their approach towards young victims is rising in the
country. Children are becoming easy prey because of their tender age, physical
vulnerabilities and inexperience of life and society. The unequal balance of power leading to
the gruesome act may also detriment the mind of the child to believe that might is right and
reported studies establish that children who have been victims of sexual violence in their
childhood become more abusive later in their life. The report of the National Crime Records
Bureau for the year 2016 indicate increase in the no. of cases registered under the said Act
from 44.7% in 2013 over 2012 and 178.6%. In 2014 over 2013 and no decline in the number
of cases thereafter.

27
The Protection of Children from Sexual Offences (Amendment) Bill, 2019, Bill No. 1 of
2019 as introduced in Lok Sabha. Available at:
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/1_2019_LS_Eng.pdf
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Be that as it may, the Supreme Court, in the matter of Machhi Singh vs. State of Punjab,28
argued that the community may stop providing protection by endorsing the death sentence if
it felt that the killer needed to be executed for the purpose of self-preservation. However, the
community won’t always act in this way. It may do so in the rarest of situations whenever its
collective experience is so horrified that it will demand the people in charge of the judiciary
to carry out the death penalty regardless of their personal feelings about whether or not the
practice should continue. The same analogy has been reiterated by the Supreme court in the
matter of Devender Pal Singh vs. State (NCT of Delhi), 29wherein it was held that when the
collective conscience of the community is so shocked, the court must award death sentence.

PROVISIONS FOR SPECIAL COURTS:

 POCSO Act provided provisions and guidelines for the establishment of special
courts for speedy trial of cases exclusively related to sexual offences against children.
 The special courts or child-friendly courts as they are called, have been created
keeping in mind the best interests of the children. A Special court is said to be set up
under section 28 of the POCSO Act and special courts are vested with special powers
to decide only cases under the POCSO Act.
 To try the offences under POCSO Act, the state government shall in consultation with
the chief justice of High Court designate for each district a Court of session to be a
Special court. Further if a court of session is notified as a children’s court under
commission of protection of child right act or,
 Special court designated for similar purposes under any other law such court shall be
deemed to be a special court.
 May take cognizance of any offence, without accuse being committed to it for trail,
without the accuse being to it for trial upon receiving a complain of facts which
constitute such offence or upon a police report of such fact. (sec-33(1))
 Section 32 of POCSO Act says that the state Government shall, by notification in the
official Gazette, appoint a Special Public Prosecutor for every Special court for
conducting cases under the Act.
 He shall be deemed to be a public servant and he had been in practice for not less than
7-years as an advocate.

28
Machhi Singh vs. State of Punjab [1983 (3) SCC 470]
29
Devender Pal Singh vs. State (NCT of Delhi) [AIR 2002 SC 1661]
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MEASURES TO BE TAKEN BY SPECIAL COURT DURING TRIAL:

 The identity of the child should not be disclosed.
 Frequent breaks during trail should be permitted to the child.
 Create a child-friendly atmosphere by allowing a family member or any person the
child trust to be present.
 Ensure that the child is not summoned to testify time and again.
 Ensure that the dignity of the child is maintained by disallowing aggressive
questioning or character assassination of the child.
 Ensure that the child victims should not be brought through the common corridor and
from the same entrance as the abuser into the Courtroom which undermines the
dignity of the child victim.
 Ensure the identity of the child is not disclosed during the investigation or trail as far
as possible, ensure that the trail is completed within one year from the date of taking
cognizance of the offence.
 The trail at the Special Court must be conducted in-camera and in presence of the
child’s parents or any other person of the child’s choice.
 During the course of trial, all questions that the Special public prosecutor or the
counsel for the accused, have for the child should be communicated to the special
court, who in turn will put the questions to the child.
 Under Section 35 of the Act, the evidence of the child should be recorded within a
period of thirty days of the Special court taking cognizance of the offence. Any
reasons for the delay in doing so, should be recorded.
 Special Court should ensure that the child is not exposed to the accused, and arrange
for the accused to hear the child’s statement and communicate with his lawyer. This is
typically done by recording the evidence through video-conferencing or by using
single visibility mirrors or curtains.
 While recording the evidence of a child with mental or physical disability, the
assistance of a qualified special educator or a person familiar with the manner of
communication of the child or an expert in that field, can be sought as stated in
section 26 of this Act.
Although the Act contemplated a mechanism for victim compensation, there wasn't a set
standard or quantity of compensation. Therefore, it was up to the judges' discretion or were

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sent to the District Legal Service Authority, where the compensation is distributed in
accordance with the victim compensation fund. The courts have run into trouble as a result of
this uncertainty. Several significant rulings that go into great depth about victim
compensation are listed below.
The Hon’ble Supreme Court in the case of Ankush Shivaji Gaikwad Vs. State of
Maharashtra,30 ... Unless Section 357 is read to confer an obligation on courts to apply their
mind to the question of compensation, it would defeat the very object behind the introduction
of the provision.
…Compensation is not ancillary to other sentences but is in addition to other sentences.
In Re: Indian Women says gang -raped on orders of Village Court published in Business
& Financial News dated 23.01.201431, the Hon’ble SC held that There is a statutory duty
upon the state, under section 357A of CrPC, to award compensation to victims of crime. A
new Section 357A was introduced to the Criminal Procedure Code in order to cast a
responsibility on the state Governments to formulate Schemes for compensation to the
victims of crime in coordination with the Central Government. Unlike Section 357, the onus
was not simply on the offender to pay the compensation, but had been put on the District
Legal Service Authority or state Legal Service Authority to determine the quantum of
compensation in each case.
Supreme Court in the Case of Suresh & Anr. Vs. State of Haryana,32held that:
The object and the purpose of the provision of Section 357A CrPC is to enable the court to
direct the state to pay compensation to the victim where the compensation under 357 was not
adequate or where the case ended in acquittal or discharge and the victim was required to be
rehabilitated.

ANALYSIS OF THE JUDICIAL PRONOUNCEMENTS:

PRE POCSO, 2012.

1. Sakshi vs. UOI:33

30
Ankush Shivaji Gaikwad Vs. State of Maharashtra [AIR 2013 SC 254]
31
In Re: Indian Women says gang -raped on orders of Village Court published in Business &
Financial News dated 23.01.2014 (2014) 4 SCC 786.
32
Suresh & Anr. Vs. State of Haryana (Crl) No. 420 of 2012
33
Supra note 2
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Case filed by an NGO called SAKSHI raising concern about the dramatic increase of sexual
violence against women and children and the implementation of the provisions of IPC
namely 377, 375/376 and 354. The petitioners raised the problems of confining rape cases
only to penile-vaginal penetration which has now been amended by the 2013 Criminal Law
amendment as it was violative of Article 21 of the Constitution. A number of statistical data
has revealed that children are often abused in manner other than penile-vaginal penetration.
Penile/anal penetration, penile/oral penetration, finger/vaginal penetration, and object/vaginal
penetration are frequently used. Inclusion of these cases under Section 377 would also be
extremely unjust. The petitioners focused on Article 15 (3) of the Constitution, which calls
for appropriate provisions and special protections for women and children.

2. Bachpan Bachao Andolan Vs. UOI:34

A PIL was filed in the SC on the wake of serious violations of child rights. The petition was
filed specifically to discourage child trafficking from circuses all over India. Children are
frequently sexually abused at these places, which is a violation of Juvenile Justice Act and
other international treaties and covenants.

AFTER POCSO:
POSCO, 2012 was put into place to make it simpler for sexual abuse victims to receive
justice. The Act forbids judicial victimization of children and mandates the employment of
more humane methods to deal with victims. Due to greater awareness, the number of such
incidents reported has doubled.

1. Nishu Vs. Commissioner of Police, Delhi and Ors.35

The set of nine people kidnapped the petitioner, a young girl, and repeatedly raped her. One
of the nine individuals was a Haryana Police constable. According to Section 376D of the
IPC and the pertinent POSCO Act requirements, the prosecution failed to provide any
medical evidence or a copy of the FIR. In this case, the court ruled that it would not be
appropriate to use its Article 32 authority because the Haryana Police had already conducted
the investigation.
34
Bachpan Bachao Andolan Vs. UOI, AIR 2011 SC 3361
35
Nishu v Commissioner of Police, 2014(3)ACR2516(SC)
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2. Avinash vs. State of Karnataka36

The victim was abducted by the appellant, who then had several sex acts with her. Under
Sections 4 of the POCSO Act and 366 of the IPC, a charge sheet was submitted against the
victim. The honourable High Court underlined the victim's age as the key determining
element and overturned the conviction in favour of gathering solid proof and handling the
case legally. Due to the ongoing rise in offences involving child sexual abuse, the courts have
demonstrated a tendency to punish those found guilty to the full extent permitted under
Section 12 of the POCSO Act, 2012. However, it is only achievable if the police and medical
professionals produce trustworthy evidence that is free of any falsification.

3. Independent Thought Vs. Union of India37

On October 11, 2017, the Indian Supreme Court rendered a significant decision in the case of
Independent Thought v. Union of India (W.P. (c) No. 382 of 2013), in which it read down
Exception 2 to Section 375 of the Indian Penal Code, 1860. The Supreme Court has declared
that it is unlawful to engage in sexual activity with a minor wife who is between the ages of
15 and 18 because, regardless of her marital status, she will always be a kid. According to the
Court, Section 375's Exception 2 violates Articles 14, 15, and 21 of the Indian Constitution,
which permit intrusive sexual contact with a girl who is under the age of 18 but over the age
of 15 for the purpose of marriage.

4. State Vs. Mohan Dass 38

No part of the POCSO Act was found to prohibit or restrict the use of the Probation of
Offenders Act, and it was decided that before condemning an offender, one must consider
their social context and personal circumstances. The accused was sentenced to two years of
harsh imprisonment followed by two years of probation by the Special Court for having

36
Avinash Shetty Vs. State of Karnataka, 2004 (13) SCC 375
Independent Thought vs. Union of India (W.P (C) No. 382 of 2013), Decided on the 11th of
37

October, 2017.
38
State vs. Mohan Dass, [Sc No. 73/13], Decided On 25.01.2014.
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committed aggravated sexual assault after determining that the Probation of Offenders Act
would apply.
CONCLUSION:
After carefully examining Indian criminal legislation, court rulings, and laws from other
nations, it is clear that the current legal framework is deficient in many ways. Additionally,
even when the law is clear, the police, doctors, and courts do not always follow the rules
precisely, which substantially impedes the victim's child's ability to receive justice. One or
more changes could be the following:
 The Police must make sure that the filing of the FIR doesn't take too long.
 When performing a kid's medical checkup, doctors need to be sensitive to how to
interact with the children and interact with the child regarding how he or she is
suffering throughout.
 The police should be knowledgeable about the effective tactics for gathering forensic
data because the forensic materials they collect frequently become tainted owing to
incorrect preservation.
 making voyeurism and child pornography totally prohibited in all forms.
 In order to defend the interests of victims and the Society as a whole, it is important to
improve the efficiency with which child welfare institutions operate. In Canada, the
same organisational system is used.
 The government should also establish some regulations to safeguard the interests of
the defenceless witnesses.
In India, the POCSO Act has had a substantial impact on child abuse cases. The POCSO Act
of 2012 recognizes nearly all types of sexual abuse. It is a really good type of legislation.
However, there are still a few issues that need to be resolved. A youngster who has
experienced sexual abuse requires the greatest possible counselling and psychological
support. The cases of child abuse in India require a holistic approach from every member of
society. Sexual abuse needs to be watched out for. They must look at and assess the
youngster in great detail. Child sexual abuse offences are the ones that go unreported the
most in India. The prevalence of child abuse is pandemic in India.
Reference:

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1. Barath k..Susheel, Mahalakshmi V., January 2016, Legal Implications of POCSO Act,
2012 – An Analysis, International Journal of Multidisciplinary Research Review. Pp.
155-162.
2. Belur Jyoti, Singh Brijesh Bahadur, December 2015, Child sexual Abuse & Law in
India, Crime Science – An Interdisciplinary Journal.
3. Forensic Study on Child Sexual Abuse under POCSO Act,
http://ijar.org.in/stuff/issues/v2-i3(3)/v2-i3(3)-a011.pdf, Accessed on November 20,
2022.
4. Reviewing India’s Protection of Children from Sexual offences Act three years on,
https://blogs.lse.ac.uk/southasia/2015/12/18/reviewing-indias-protection-of-children-
from-sexual-offences-act-three-years-on/
5. The Indian Penal Code, 1860 (60 of 1860)
6. The Indian Evidence Act, 1872.
7. The Prevention of Children from Sexual offences Act, 2012 (32 of 2012)
8. A complete guide to POCSO Act Hardcover – 2016 EDN. (REPRINT), By Pratap S.
Malik
9. Universal’s Commentary on The POCSO Act, 2012 and Rules [POCSO], 2017 Edn.
(REPRINT), By Justice P S NARAYANA.
10. Articles, Journals, News letters
 Delhi Law Journals
 India Today
 The Hindu
 Supreme Court Cases
 The Criminal Law Journals
11. Websites and Blogs.
 http://in.reuters.com

 http://indianexpress.com/
 http://supremecourtofindia.nic.in/
 http://www.livelaw.in/
 http://www.scconline.com/WebEdition.aspx
 http://www.thehindu.com/
 http://www.un.org/en/index.html
 http://www.wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf

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