1 Protection of Children from

Sexual Offences Act, 2012

Introduction
The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a comprehensive law. This Act
provides for the legal provisions for the protection of children under 18 years of age from sexual abuse
and exploitation. This Act contains 46 Sections in 9 chapters and a schedule wherein it provides for
the penetrative sexual assault and punishment thereof, aggravated penetrative sexual assault, sexual
assault, other sexual offences against children, child pornography and its punishment. It also provides
for the procedure for reporting of cases and procedure for recording the statement of the child,
applications of the Code of Criminal Procedure, procedures and powers of special courts and recording
of evidence, and further guidelines, rules, and powers are described and discussed.

History
Sexual abuse and sex trafficking have always been serious problems in India. However, the problem of
child sexual abuse needs to be addressed through less ambiguous and more stringent punishment. The
Bill was introduced and enacted with a view to protect children from sexual offences. The Protection
of Children from Sexual Offences (POCSO) Act, 2012 was passed by both the houses of Parliament,
assented by the President on 19 June 2012. This Act came into force on 14 November 2012 as Act
number 32 of the year 2012.

Applicability of the Act

The Protection of Children from Sexual Offences (POCSO) Act, 2012 extends to the whole of India.
Section 31 of the Act, Application of Code of Criminal Procedure, 1973 to proceedings before a Special
Court—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2
of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special
Court and for the purposes of the said provisions, the Special Court shall be deemed to be a court of
Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a
public prosecutor.
Section 42A of the Act, Act not in derogation of any other law—The provisions of this Act shall be in
addition to and not in derogation of the provisions of any other law for the time being in force and, in
case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of
any such law to the extent of the inconsistency.
Public awareness about Act, Section 43 provides for—the Central Government and every State
Government, shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through media including the television, radio and
the print media at regular intervals to make the general public, children as well as their parents
and guardians aware of the provisions of this Act;
(b) the officers of the Central Government and the State Governments and other concerned persons
(including the police officers) are imparted periodic training on the matters relating to the
implementation of the provisions of the Act.

Objective of the Act

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was formulated to effectively
address the heinous crimes of sexual abuse and sexual exploitation of children. This Act of 2012

Protection of Children from Sexual Offences Act, 2012 1

 was introduced to provide for the protection of children from the offences of sexual assault, sexual
harassment, etc. This Act also provides for safeguarding the interests of the child at every stage of
the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence,
investigation, and speedy trial of offences through designated Special Courts.
Primarily the object of the Act was to protect the children from various types of sexual offences and
for this purpose this Act provides for the establishment of Special Courts for trial of offences under
the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial
process.

Statement of Objects and Reasons

1. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provisions
for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy
towards securing that the tender age of children are not abused and their childhood and youth are
protected against exploitation and they are given facilities to develop in a healthy manner and in
conditions of freedom and dignity.
2. The United Nations Convention on the Rights of Children, ratified by India on 11 December 1992,
requires the State Parties to undertake all appropriate national, bilateral and multi-lateral measures
to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b)
the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the
exploitative use of children in pornographic performances and materials.
3. The data collected by the National Crime Records Bureau shows that there has been an increase in
cases of sexual offences against children. This is corroborated by the ‘Study on Child Abuse: India
2007’ conducted by the Ministry of Women and Child Development. Moreover, sexual offences
against children are not adequately addressed by the existing laws. Many such offences are neither
specifically provided for nor are they adequately penalised. The interests of the child, both as a
victim as well as a witness, need to be protected. It is felt that offences against children need to
be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self-contained comprehensive legislation inter alia to provide
for protection of children from the offences of sexual assault, sexual harassment and pornography
with due regard for safeguarding the interest and well-being of the child at every stage of the
judicial process, incorporating child-friendly procedures for reporting, recording of evidence,
investigation and trial of offences and provision for establishment of Special Courts for speedy
trial of such offences.
5. The Bill would contribute to enforcement of the right of all children to safety, security and protection
from sexual abuse and exploitation.
6. The notes on clauses explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives.

List of Amending Acts

1. The Criminal Law (Amendment) Act, 2013 (Act 13 of 2013)
2. The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018)
3. The Protection of Children from Sexual Offences (Amendment) Act, 2019 (Act 25 of 2019)
4. The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019)

2 Protection of Children from Sexual Offences Act, 2012

 Points to Remember !
y The POCSO Act is a special law.
y The POCSO Act is gender neutral.
y The POCSO Act is a comprehensive law.
y Sexual offence is not limited to rape only.
y Stringent punishments have been imposed in this Act.
y Earlier to this Act most of the sexual offences are covered under the Indian Penal Code.
y The POCSO Act provides for a child-friendly system for trial underneath which the perpetrators
could be punished.
y The POCSO Act provides for every child the right to get informed for the case in which they are
involved.
y The POCSO Act provides for every child the right to be heard.
y Expression “penetrative sexual assault”, “sexual assault” and “sexual harassment” firstly defined
by the Act.

Subjective Theory
Sexual behaviour is simply a biological phenomenon. The bio-physical changes with the growth of
human body automatically prepares the males and females for sexual behaviour and thus it needs no
specific training. But due to the present moral degradation and vanishing effects of religious sanctions,
there has been an unprecedented increase in sex delinquency.
Sex crimes have now-a-days become so common that not only adults, but the tender aged children
also are becoming the victims of various sexual offences. Considering the alarming situation, the
Supreme Court in State of Rajasthan versus Om Prakash, AIR 2002 SC 2235, held that “in such cases,
responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to
these children. Children always need special care and protection. Their physical and mental immobility
call for such protection. It has always been stated that children are the natural resources of our
country. They are country’s future. In this country, a girl child is in a very vulnerable position and one
of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point
towards a different approach required to be adopted.”
To strengthen the legal provisions for the protections
Article 15 of the Constitution, inter alia, of children from sexual abuse and exploitation,
confers upon the State powers to make a special law has been passed which intends to
special legislation for children. Further, address the issue of sexual offences against children.
Article 39, inter alia, provides that the Therefore, the POCSO, 2012 was enacted on 19 June
state shall in particular direct its policy 2012 and came into force from 14 November 2012
towards securing that the tender age with a view to protect the children from offences of
of children are not abused and their sexual assault, sexual harassment and pornography
childhood and youth are protected and provides for the establishment of Special Courts
against exploitation. for trial of such offences and for matters connected
therewith or incidental thereto.

Protection of Children from Sexual Offences Act, 2012 3

 This Act casts a duty on the Central Government and the State Governments to spread awareness
through media including radio, newspaper/print media, and television at regular intervals to make
general public, children as well as their parents and guardians aware of the provisions of the Act.
Moreover, the National Commission for the Protection of Child Rights and the State Commission for the
Protection of Child Rights have been made the designated authority to monitor the implementation of
the Act.
The Act further provides for the establishment of Special Courts for trial of offences, keeping the best
interest of the child as of paramount importance at every stage of the judicial process.

Key Features of the Act

y It is a gender-neutral act: By defining a child as ‘any person below the age of 18 years’, the POCSO
Act sets a gender-neutral tone for the legal framework available to child sexual abuse victims. The
Act also does not distinguish between perpetrators of child sexual abuse on the grounds of gender.
y It is an offence to not report an abuse: It requires every person who suspects or has knowledge of a
sexual offence being committed against a child to report it to the local police or the Special Juvenile
Police Unit. The Act not only punishes the perpetrator of sexual abuse but also penalises those who
have failed to report the offence with either imprisonment, a fine, or both.
y No time limit for reporting abuse: A victim can report an offence at any time, even several years after
the abuse has been committed. Therefore, organisations dealing with children in India cannot deny
child sexual abuse complaints filed against their employees on the pretext of lapse of time.
y Confidentiality of victim’s identity: Section 23 of the POCSO Act prohibits disclosure of the victim’s
identity in any form of media, except when permitted by the Special Courts established under the
Act. A violation of this Section can attract punishments under the Act.

General Principles of the POCSO Act

The fundamental principles to be followed in the determination of a case involving a sexual offence
against a child have been laid down in various international instruments and in the Preamble to
the POCSO Act, 2012 itself. The State Governments, the Child Welfare Committee, the police, the
Special Courts, all other government functionaries as well as non-government organisations, and all
professionals and experts assisting the child at the trial and pre-trial stage are bound to abide by these
principles. These principles are:
(a) Right to life and survival: Every child has the right to life and survival and to be shielded from
any form of hardship, abuse or neglect, including physical, psychological, mental and emotional
abuse and neglect; and to a chance for harmonious development and a standard of living adequate
for physical, mental, spiritual, moral and social growth. In the case of a child who has been
traumatised, every step should be taken to enable the child to enjoy healthy development.
(b) The best interests of the child: Every child has the right to have his/her best interests given
primary consideration. This includes the right to protection and to a chance for harmonious
development. Protecting the child’s best interests means not only protecting the child from
secondary victimisation and hardship while involved in the justice process as victim or witness,
but also enhancing the child’s capacity to contribute to that process. Secondary victimisation
refers to the victimisation that occurs not as a direct result of the criminal act but through the
response of institutions and individuals to the victim.

4 Protection of Children from Sexual Offences Act, 2012

(c) The right to be treated with dignity and compassion: Child victims should be treated in a caring and
sensitive manner throughout the justice process, taking into account their personal situation and
immediate needs, age, gender, disability and level of maturity and fully respecting their physical,
mental and moral integrity. Interference in the child’s private life should be limited to the minimum
needed and information shared on a need-to-know basis. Efforts should also be made to reduce
the number of professionals interviewing the child. At the same time, however, it is important that
high standards of evidence collection are maintained in order to ensure fair and equitable outcomes
of the justice process. In order to avoid further hardship to the child, interviews, examination
and other forms of investigation should be conducted by trained professionals who proceed in a
sensitive, respectful and thorough manner in a child-friendly environment. All interactions should
also take place in a language that the child uses and understands. Medical examination should be
ordered only where it is necessary for the investigation of the case and is in the best interests of
the child and it should be minimally intrusive.
(d) The right to be protected from discrimination: The justice process and support services available
to child victims and witnesses and their families should be sensitive to the child’s age, wishes,
understanding, gender, sexual orientation, ethnic, cultural, religious, linguistic and social background,
caste and socio-economic condition, as well as to the special needs of the child, including health,
abilities and capacities. Professionals should be trained and educated about such differences.
Age should not be a barrier to a child’s right to participate fully in the justice process. Every child
should be treated as a capable witness, according to his/her age and level of maturity.
(e) The right to special preventive measures: Children may already face twice as much risk of repeated
victimisation as adults because they often are or are perceived by a potential offender as being
vulnerable, unsure of how to defend themselves or unable to properly assert themselves and take
a strong position against an adult. A preventive measure that could be used to protect children
is to demand references and a criminal background assessment before hiring personnel likely to
work with children, such as school teachers.
(f) The right to be informed: There are two aspects of child victims’ and witnesses’ right to be informed.
The first aspect is the more general one and consists of informing child victims and witnesses
about the assistance they are entitled to, the way legal proceedings are organised and the role
they can play in those proceedings if they decide to do so. The second aspect is more specific and
relates to information on the case in which the child is involved: it implies being informed about
the progress of the case, about the scheduling of the proceedings, about what is expected of the
child, about the decisions rendered, about the status of the offender, and so forth.
(g) The right to be heard and to express views and concerns: Every child has the right to be heard
in respect of matters affecting him/her. The child has a right to participate at all levels: being
informed, expressing an informed view, having that view considered, and being the main or joint
decision maker. When, for any good reason, the requirements and expectations of the child cannot
be met, it needs to be explained to the child, in a child-friendly way, why certain decisions are
made, why certain elements or facts are or are not discussed or questioned in court and why
certain views are not taken into consideration. It is important to show respect for elements that a
child finds important in his/her story, but which are not necessarily relevant as evidence.
(h) The right to effective assistance: The child must receive the required assistance to address his/
her needs and enable him/her to participate effectively at all stages of the justice process. This
may include assistance and support services such as financial, legal, counselling, health, social and

Protection of Children from Sexual Offences Act, 2012 5

 educational services, physical and psychological recovery services and other services necessary for
the child’s healing, as well as for justice and reintegration.
(i) The right to privacy: The child’s privacy and identity must be protected at all stages of the pre-
trial and trial process. The release of information about a child victim or witness in the media,
may endanger the child’s safety, cause the child intense shame and humiliation, discourage him/
her from telling what happened and cause him/her severe emotional harm. Release of information
about a child victim or witness may put a strain on the relationships of the child with family,
peers, and community, especially in cases of sexual abuse. In some cases, it might also lead to
stigmatisation by the community, thereby aggravating secondary victimisation of the child. There
are two essential ways of protecting the privacy of child victims and witnesses: firstly, by restricting
the disclosure of information on child victims and witnesses and secondly, by restricting the
attendance of the general public or non-essential persons in courtrooms.
(j) The right to be protected from hardship during the justice process: Throughout the justice
process, child victims are exposed to hardship, also referred to as secondary victimisation: this
can occur while reporting the crime and recounting what has happened, while awaiting trial and
while testifying in court. The judicial process is a very stressful one for the child; as far as possible,
any stress the child may have because of the process should be minimised.
(k) The right to safety: Where the safety of a child victim may be at risk, appropriate measures should
be taken to require the reporting of those safety risks to appropriate authorities and to protect the
child from such risk before, during and after the justice process. Professionals should be trained
in recognising and preventing intimidation, threats and harm to child victims and witnesses. Where
child victims and witnesses may be the subject of intimidation, threats or harm, appropriate
conditions should be put in place to ensure the safety of the child.
(l) The right to compensation: The child victim may be awarded compensation for his/her relief and
rehabilitation. This compensation may be awarded at an interim stage, during the pendency of
trial, as well as at the conclusion of the trial. Procedures for obtaining and enforcing reparation
should be readily accessible and child sensitive. Victims may be repaid for material losses and
damages incurred, receive medical and/or psychosocial support and obtain reparation for ongoing
suffering.
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 and speedy trial of offences through designated
Special Courts.
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 offence; if he/she fails to do so, he/she may be
punished with six months’ imprisonment and/or a fine.
The said Act is to be implemented with the active participation of the State Governments. Under
Section 39 of the said Act, the State Governments are required to frame guidelines for the use of
persons including non-governmental organisations, professionals and experts or persons trained
in and having knowledge of psychology, social work, physical health, mental health and child
development to assist the child at the trial and pre-trial stage. The following guidelines are Model
Guidelines formulated by the Central Government, based on which the State Governments can
then frame more extensive and specific guidelines as per their specific needs.

6 Protection of Children from Sexual Offences Act, 2012

Sexual Offences against Children
The POCSO Act Punishment is more stringent, and after the Amendment Act of 2019, the punishment
is even more severe. The POCSO Act punishment shall not be less than 10 years but which may extend
to imprisonment for life and shall also be liable to fine. In case of penetrative sexual assault on a
child below 16 years of age, the punishment shall not be less than 20 years but which may extend to
imprisonment for life, which shall mean imprisonment of natural life of that person and shall also be
liable to fine.

Section 3 of the POCSO ACT: Penetrative Sexual Assault

Section 3 of the POCSO Act, 2012 includes penetration of any object or body part into any body part
or mouth of the child. It also includes manipulating any body part of the child or making the child
penetrate anyone else’s body or even the body of the offender.
Section 4 of the POCSO Act, 2012 provides punishment for penetrative sexual assault. In the case of
penetrative sexual assault, an offender gets punished with imprisonment of a term not less than 10
years, and that may extend to life imprisonment. Such minimum punishment may extend to 20 years,
which shall mean imprisonment of natural life of that person and shall also be liable to fine in case of
offence with a child below the age of 16 years.
Section 5 of the POCSO Act, 2012 provides that a penetrative sexual assault become an aggravated
sexual assault in the following situations:
1. when the offender or the abuser is any person who is in the authority or position of trust of the
victim;
2. there is a blood relation between the offender and the victim;
3. the victim becomes pregnant;
4. the child suffers injury.

Section 7 of the POCSO Act: Offence of Sexual Assault

As per Section 7 of the POCSO Act, 2012, when an abuser fondles the child’s private part or vice versa,
he/she is said to have committed sexual assault. The sexual offence is touch-based and includes the
sexual intent of the offender.
The POCSO Act punishment for an offence under Section 7, provided under Section 8, is minimum
imprisonment of three years that may extend to five years with fine.

Section 9 of the POCSO Act: Sexual Offence become Aggravated

According to Section 9 of the POCSO Act, 2012, an act becomes aggravated or not depending upon the
relationship between victim and offender and the authority of the offender. It also relies on the nature
of the assault and the impact of the assault.
Section 10 incorporates the POCSO Act punishment for an offence committed under Section 9 of the
Act. According to this Section, an offence under Section 9 is punishable with imprisonment of any
description for a term that is not less than 5 years and may extend to 7 years with fine.

Section 11 of the POCSO Act: Sexual Harassment

According to Section 11 of the POCSO Act, 2012, when an offender shows or shares any sort of sexual
content to the victim through a message or any other form of communication, he/she is said to have
committed an offence of sexual harassment. It also includes vulgar or abusive gestures. The offence of
sexual harassment is not touch-based and sexual intent is required for such offence.

Protection of Children from Sexual Offences Act, 2012 7

 The POCSO Act punishment for an offence under Section 11 of the Act gets provided under Section 12.
According to Section 12 of the Act, the punishment includes imprisonment for a maximum of three
years with fine.

Section 13 of the POCSO Act: Using Child for Pornographic Purpose

Section 13 of the POCSO Act, 2012 states the child’s use for pornographic activities. If a child gets used
to any form of media for sexual gratification, then the person using the child is considered an offender
for this Section. Sexual gratification means and includes:
1. representation of sexual organ of a child;
2. using a child for actual or simulated sexual that could be with or without penetration;
3. representation of a child indecently or obscenely.
Punishment for such actions is provided under Section 14. Section 14 of the Act provides the punishment
given to an offender in different situations for using a child for pornographic purposes. The punishment
is as follows:
y Punishment for an act committed under Section 13: the punishment provided under Section 14(1) is
imprisonment of either description for a term which may extend to five years with a fine. If a person
is a repeated offender, such imprisonment may extend to seven years with a fine.
y Also, storing any pornographic material that involves a child is a punishable offence under POCSO
Act, 2012. The POCSO Act punishment for such offence can be imprisonment of any description for
a term that may extend to three years with a fine or with both.

Section 16 of the POCSO Act: Abetment to Commit an Offence

As per Section 16 of the POCSO Act, 2012, a person is said to be committed an abetment in the
following cases:
1. if the offender instigates any person to do any offence;
2. if the offender is involved with any other person or persons in a conspiracy of doing an offence;
3. if the offender intentionally aids any act or illegal omission.
For all such acts of abetment and attempt to commit an offence, punishment is provided under
Section 17 and Section 18 of the POCSO Act respectively.
The POCSO Act under Section 17 provides punishment for the offence of abetment and attempt to
commit a crime under Section 18.
Abetment gets punished with the same punishment as the offender.
In case of an attempt to commit an offence, the person gets punished with half of the punishment
given to the offender.

Section 22 of the POCSO Act, 2012: Punishment for False Complaint or False Information
According to Section 22 of the POCSO Act, 2012, if any person makes a false complaint or provides
information that is not true related to any offence mentioned under Sections 3, 5, 7 or 9 with an
intention to defame, threaten, or humiliate such person, then he/she has committed a crime under
Section 22. Such a person is liable for imprisonment, which may extend to six months or with fine or
with both.
However, if a person provides false information about a crime against a child and knows that the
information is incorrect but victimise the child by providing such information, in this case, the POCSO
Act Punishment is an imprisonment for maximum of one year or with fine or with both.

8 Protection of Children from Sexual Offences Act, 2012

In Ramchandra Shrimant Bhandare versus The State of Maharashtra, (Criminal Appeal No. 982 of 2017)
decided on 03-08-2022, the Bombay High Court held that the absence of injury mentioned in the
medical certificate will not make any difference to the case because the very nature of the offence of
sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with
sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the Protection
of Children from Sexual Offences Act.
The Delhi High Court in Gaya Prasad Pal @ Mukesh versus State, (Criminal Appeal No. 538/2016)
decided on 09-12-2016 that appeared before the Delhi High Court involved the appellate challenging
his conviction for being charged twice because of the same offence. For raping his stepdaughter under
the age of 14 and making her pregnant, the man was found guilty of penetrative sexual assault under
Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter, POCSO Act) read
with Section 376 of the Indian Penal Code. The reason for the delay in filing the FIR was because the
child was concerned about her mother and stepbrother’s safety if her stepfather was convicted and
sentenced to prison. Separate sentences were imposed on the appellant for offences punishable
under Section 376 IPC Section 6 POCSO Act, Section 354 IPC, and Section 506 IPC. The observations
made by the Hon’ble High Court in this present case have been laid down hereunder:
1. The Trial Court did not put the appellant on trial for the offence of aggravated penetrative sexual
assault under Section 6 of the POCSO Act. As a result, punishing him for the same offence was
unconstitutional.
2. In the case of a minor, ‘rape’ (Section 375 IPC) can also be considered ‘penetrative sexual assault’
(Section 3 POCSO Act). Acts that constitute ‘penetrative sexual assault’ against a girl child would
also be considered rape. A person may not be punished twice for the same set of actions of
conduct or omission that collectively form an offence covered by two separate articles of law.
Even though the law allows for a trial on an alternative charge for both offences, the punishment
can only be given for one of them, the one that is more serious.
3. Furthermore, the Court noted that the appellant’s conviction for the violation under Section 4 of
the POCSO Act is in addition to his conviction for the offence under Section 376 of the IPC. And the
appellant’s actions are punishable under Section 376(2) of IPC which provides for a punishment of
life imprisonment (imprisonment for the rest of a person’s natural life) as well as a fine, which is
more severe than the punishment under Section 4 of the POCSO Act. In this case, Section 42 of
the POCSO Act applies, and the Court is required to penalise the offender for the offence under
Section 376(2)(f)(i) and (k) of the IPC, which is more serious than the offence under Section 4 of
the POCSO Act.
The Delhi High Court recently stated in the case of Hari Dev Acharya @ Pranavanand versus State,
CRL.M.C. 6530/2018 decided on 2021, that as the Protection of Children from Sexual Offenses (POCSO)
Act, 2012 is silent on whether two separate incidents can be combined in a single First Information
Report (FIR), the provisions of the Code of Criminal Procedure, 1973 (CrPC) would apply, allowing joint
trial if the offences were committed during the same transaction. A single-judge bench of the High
Court, Justice Manoj Kumar Ohri, made the remark while dismissing a number of people’s petitions
challenging the summons issued by a special POCSO Court and the additional charge sheets. The
summons and charge sheets were issued in August 2019 in connection with an incident in which a
youngster studying at a gurukul in Delhi was reportedly raped by a superior. The accused took the
youngster to the teacher’s room and sexually attacked him. The boy had then informed his friend
about the same. They went to the police station and renewed their complaint, but because his mother

Protection of Children from Sexual Offences Act, 2012 9

 and sister had already arrived, a solution was achieved under the pressure of four people. According
to Justice Ohri, Section 219 of the CrPC allows a person who commits three similar offences within a
12-month period to be prosecuted at the same time, and because both offences are punished under
the same provisions of the IPC and POCSO, they constitute the same transaction. Therefore, the
summoning orders were upheld, and the petitions were dismissed.

Attorney General for India versus Satish, 2021 SCC Online Sc 1076
The Bombay High Court’s Nagpur Bench had ruled in the case of Satish Ragde versus State of
Maharashtra (2021) that grabbing a child’s breasts without making “skin-to-skin contact” constituted
molestation under the POCSO Act, 2012. The comment was given by a single bench led by Justice
Pushpa Ganediwala. The Attorney General of India, the National Commission for Women, and the State
of Maharashtra filed appeals against the High Court’s controversial decision, which were heard by a
bench consisting of Justices Uday Umesh Lalit, S Ravindra Bhat, and Bela M Trivedi, in the present case
of Attorney General for India versus Satish and Another, 2021 SCC Online Sc 1076.
The issue at hand was how should Section 7 of the POCSO Act, 2012 be interpreted so as to provide a
fair and reasonable solution to the cases falling under its ambit. The present judgement observed that
Section 7 covers both direct and indirect touch thereby highlighting that the logic in the High Court’s
opinion quite insensitively trivialises indeed legitimises a whole spectrum of undesirable behaviour
which undermines a child’s dignity and autonomy, through unwelcome intrusions.
Setting aside the Bombay High Court’s judgement, the Apex Court observed that the matter at hand
would be an appropriate situation for using the “mischief rule” of statutory interpretation. It emphasises
that courts must constantly interpret the law in order to prevent harm and promote the remedy. In
this view, the top court’s judgement observed that the High Court’s interpretation not only restricts the
implementation of the legislation but also seeks to pervert its objective.

Procedure of Reporting of Case

Chapter V, Section 19 to Section 23 of the Protection of Child from Sexual Offences (POCSO) Act, 2012
deals with the procedure for reporting of cases.

1. Reporting of Offences
As per Section 19 of the said Act,
“a. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person (including
the child), who has apprehension that an offence under this Act is likely to be committed or has
knowledge that such an offence has been committed, he shall provide such information to the
Special Juvenile Police Unit, or the local police.
b. Every report given under sub-section (1) shall be ascribed an entry number and recorded in writing;
be read over to the informant shall be entered in a book to be kept by the Police Unit.
c. Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-
section (2) in a simple language so that the child understands the contents being recorded.
d. In case contents are being recorded in the language not understood by the child or wherever it
is deemed necessary, a translator or an interpreter, having such qualifications, experience and on
payment of such fees as may be prescribed, shall be provided to the child if he fails to understand
the same.

10 Protection of Children from Sexual Offences Act, 2012

e. Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an
offence has been committed is in need of care and protection, then, it shall, after recording the
reasons in writing, make immediate arrangement to give him such care and protection (including
admitting the child into shelter home or to the nearest hospital) within 24 hours of the report, as
may be prescribed.
f. The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a
period of 24 hours, report the matter to the Child Welfare Committee and the Special Court or
where no Special Court has been designated, to the Court of Session, including need of the child
for care and protection and steps taken in this regard.
g. No person shall incur any liability, whether civil or criminal, for giving the information in good faith
for the purpose of sub-section (1).”

With satisfactory explanation to the delay, the prosecution’s case cannot be discarded or disbelieved
merely on the grounds of delay in FIR. “Delay in filing of FIR cannot be used as a ritualistic formula
to doubt the authenticity of the prosecution evidence”.

In the case of State of Himachal Pradesh versus Gian Chand, (2001) 6 SCC 71, the Supreme Court has
rightly held that delay in filing of FIR cannot be used as a ritualistic formula to doubt the authenticity
of the prosecution evidence. When an explanation for the delay is offered it is the duty of the courts to
analyse if the same is satisfactory or not. In the event the prosecution fails to establish the reason for
the delay in lodging of the FIR, it should be checked whether there is a possibility of embellishment or
exaggeration in the version of the prosecution.

Is Disclosure of Identity of Victim under the POCSO Act a Cognizable Offence?

Section 23 of the POCSO Act makes the disclosure of the identity of the child a punishable offence
with imprisonment of either description for a period which shall not be less than six months, but which
may extend to one year or with fine or with both. It applies equally to media reports.
Disclosure of the identity of a child who is a victim of a sexual offence or who is in conflict with the
law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed, the
provision of Section 23 of POCSO Act which protects child victims of sexual abuse from unwarranted
intrusion into privacy, harassment and mental agony has to be strictly enforced. The provision cannot
be allowed to be diluted.
In Gangadhar Narayan Nayak versus The State of Karnataka, 2022 SCC Online SC 337, a Supreme
Court bench comprising Justices Indira Banerjee and JK Maheshwari, in the above captioned matter,
expressed differing opinions over whether an offence under Section 23 of the Protection of Children
from Sexual Offences (POCSO) Act, 2012 is non-cognizable, and thus, prior permission of the magistrate
to the police would be needed to investigate it. Justice Banerjee held that the offence under 23 of the
POCSO Act is a cognizable offence, while Justice Maheshwari treated it as a non-cognizable offence.
Justice Indira Banerjee held that the right of a child to dignity not only requires that the child be
protected from offence of sexual assault, sexual harassment and pornography, but also requires that
the dignity of a child be safeguarded. As per the Code of Criminal Procedure (CrPC), cognizable offences
are those offences for which a police officer may arrest a person without a warrant. On other hand,
for a non-cognizable offence, a police officer has no authority to arrest without a warrant. Section
155(2) of the Code of Criminal Procedure makes it obligatory for a police officer to investigate a non-
cognizable case with the prior permission of a magistrate. Justice Banerjee examined and interpreted

Protection of Children from Sexual Offences Act, 2012 11

 Sections 23, 19, 31 and 33(9) of the POCSO Act, giving these provisions a literal interpretation, and
keeping the child’s dignity and privacy into consideration. Taking note of Section 19, Justice Banerjee
held that it does not exclude the offence under Section 23. Section 19 provides for the reporting of
offence. It begins with a non-obstante clause overriding the Code of Criminal Procedure. Keeping this
into consideration, Justice Banerjee held, “This is patently clear from the language and tenor of Section
19(1), which reads “…any person who has apprehension that an offence under this Act is likely to be
committed or has knowledge that such an offence has been committed…””.
The expression ‘offence’ in Section 19 of the POCSO Act, Justice Banerjee wrote, would include all
offences under the POCSO Act, including the offence under Section 23 of publication of a news report
disclosing the identity of a child victim of sexual assault. She held that the disclosure of the identity
of the child in the media may also expose the child victim of a sexual offence to vindictive retaliation
by the perpetrators of the crime or their accomplices.
Justice Banerjee adverted to similar provisions protecting the identity of the victim of sexual offences,
namely Section 228A of the Indian Penal Code, Section 327(2) of the Code of Criminal Procedure, and
Section 74 of the Juvenile Justice (JJ) Act. She said the object of these laws, including Section 23
of the POCSO Act, is to prevent the disclosure of the identity of the victim. The identity of the victim
should not be discernible from any matter published in the media.
Whereas Justice Maheshwari noted that the POCSO Act does not clarify cognizable and non-cognizable
offences. He referred to the Code of Criminal Procedure scheme on cognizable and non-cognizable
offences. The first schedule of the Code of Criminal Procedure provides for the classification of offence,
which is in two parts. The first part specifies the punishment, cognizability or non-cognizability,
bailability or non-bailability; and triability by which court. The second part deals with the offences
committed under any other law and specifies the description of the offences: cognizability or non-
cognizability, bailability or non-bailability; and triability by which court. On a reading of the schedule,
Justice Maheshwari opined that it is clear that for offences punishable with a sentence of imprisonment
for less than three years or with fine, if prescribed in that law, the commission of such offence under
any other law would be non-cognizable, bailable and triable by any magistrate. He thus held that if the
sentence prescribed for the offence is less than three years, then those offences of the POCSO Act
would be non-cognizable.
On the interpretation of Section 19 of the POCSO Act, Justice Maheshwari differed with Justice Banerjee
to hold that it does not specify that all the offences under the POCSO Act are cognizable. Besides, he
held that Section 19 or other provisions of the POCSO Act also do not specify how and in what manner
the investigation on reporting of the commission of offence under sub-section (1) of Section 19 be
done by the police. He thus held that in absence of any procedure for investigation under the POCSO
Act, either for cognizable or non-cognizable offences, the procedure prescribed in CrPC ought to be
followed in the matter of investigation, enquiring into and trial. He further held that Section 19 of the
POCSO Act overrides the provisions of CrPC only to the extent of reporting the matters to the police or
the Special Juvenile Police Unit and other ancillary points so specified in Section 19.
Justice Maheshwari also doubted the correctness of the Delhi High Court’s 2016 judgement in the
Santosh Kumar Mandal case, in which it was held all offences under the POCSO Act are cognizable.
Having held that the offence under Section 23 of the POCSO Act is non-cognizable, Justice Maheshwari
adverted to Section 155 of the CrPC to opine that its language makes it clear that it is mandatory that
no police officer shall investigate a non-cognizable case without the order of the Magistrate. Therefore,
the said provision is mandatory and required to be complied with prior to investigating a non-cognizable

12 Protection of Children from Sexual Offences Act, 2012

offence. Section 155(2) of the CrPC provides for the permission of the Magistrate but under the POCSO
Act, it is the Special Court designated which deals with offences under the Act. Justice Maheshwari
thus held that “Magistrate” in Section 155(2) be read as “Special Courts” for offences under the POCSO
Act, and the special courts may take cognizance of any offence under the POCSO Act.
Since the division bench could not arrive at a unanimous conclusion, the matter has been unanimously
directed to be placed before the Chief Justice of India for listing it before an appropriate bench.
In the case of State of Gujarat versus Anirudh Singh, AIR 1997 SC 2780, the Supreme Court had
observed that it is the duty of every citizen to aid and cooperate with the investigative agencies and
give information regarding the commission of cognizable offences. In various instances, schools and
teachers help child victims by reporting the sexual abuse cases to the authorities.
Similarly, in the case of Nar Bahadur Subba versus State of Sikkim, (Criminal Appeal No. 32/2015)
decided on 7 October 2016, decided by the Sikkim High Court, wherein, teachers received information
that her student is pregnant due to repeated sexual assaults on her by an elderly accused. The
teachers informed the panchayat who lodged an FIR in the police station.
In the leading case, Shankar Kisanrao Khade versus State of Maharashtra, (2013) 5 SCC 546, wherein the
Supreme Court laid down guidelines regarding reporting the offence. In this case, rape was committed
on an 11-year-old child with moderate intellectual disability but it was neither reported to the police
nor to the Juvenile Justice Board. The Court observed that children with intellectual disabilities are
more vulnerable and therefore, the institutions which house them have the responsibility to report
sexual abuse incidents against them. Furthermore, it was laid down that non-reporting of crime in
accordance with the provisions of the POCSO Act is a serious offence.
The last seen theory: The theory of last seen is applied in the child sexual 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 the point when they were last seen alive is so minute that it is not possible
that any other person could have committed the crime. In the case of Shyamal Ghosh versus State of
West Bengal, (Criminal Appeal No. 507/2007) decided on 11 July 2012, it was observed that when the
time gap is large then it is not reasonable for the Courts to apply the last seen theory.

2. Obligation of Media, Studio and Photographic Facilities to Report Cases

According to Section 20 of the POCSO Act 2012, “Any personnel of the media or hotel or lodge or
hospital or club or studio or photographic facilities, by whatever name called, irrespective of the
number of persons employed therein, shall, on coming across any material or object which is sexually
exploitative of the child (including pornographic, sexually-related or making obscene representation
of a child or children) through the use of any medium, shall provide such information to the Special
Juvenile Police Unit or to the local police, as the case may be.”
In Nipun Saxena versus Union of India, 2019 (2) SCC 703, the Apex Court held that “38. No doubt, it
is the duty of the media to report every crime which is committed. The media can do this without
disclosing the name and identity of the victim in case of rape and sexual offences against children.
The media not only has the right but an obligation to report all such cases. However, media should be
cautious not to sensationalise the same. The media should refrain from talking to the victim because
every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she
has gone through. Reportage of such cases should be done sensitively keeping the best interests of
the victims, both adult and children, in mind. Sensationalising such cases may garner television rating
points (TRPs) but does no credit to the credibility of the media.”

Protection of Children from Sexual Offences Act, 2012 13

 The court further held that “50. In view of the aforesaid discussion, we issue the following directions:
50.1. No person can print or publish in print, electronic, social media, etc., the name of the victim or
even in a remote manner disclose any facts which can lead to the victim being identified and which
should make her identity known to the public at large.”

3. Punishment for Failure to Report or Record a Case

Section 21 of the POCSO Act, 2012 provides punishment for failure to report for the record of a case.
It states that:
“a. Any person, who fails to report the commission of an offence under sub-section (1) of Section
19 or Section 20 or who fails to record such offence under sub-section (2) of Section 19 shall be
punished with imprisonment of either description which may extend to six months or with fine or
with both.
b. Any person, being in-charge of any company or an institution (by whatever name called) who
fails to report the commission of an offence under sub-section (1) of Section 19 in respect of a
subordinate under his control, shall be punished with imprisonment for a term which may extend
to one year and with fine.
c. The provisions of sub-section (1) shall not apply to a child under this Act.”

4. Punishment for False Complaint or False Information

According to Section 22 of the said Act,
“a. Any person, who makes a false complaint or provides false information against any person, in
respect of an offence committed under Sections 3, 5, 7 and Section 9, solely with the intention to
humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which
may extend to six months or with fine or with both.
b. Where a false complaint has been made or false information has been provided by a child, no
punishment shall be imposed on such a child.
c. Whoever not being a child, makes a false complaint or provides false information against a child,
knowing it to be false, thereby victimising such child in any of the offences under this Act, shall be
punished with imprisonment which may extend to one year or with fine or with both.”

5. Procedure for Media

As per Section 23,
“a. No person shall make any report or present comments on any child from any form of media or
studio or photographic facilities without having complete and authentic information, which may
have the effect of lowering his reputation or infringing upon his privacy.
b. No reports in any media shall disclose, the identity of a child including his name, address,
photograph, family details, school, neighbourhood or any other particulars which may lead to
the disclosure of the identity of the child: Provided that for reasons to be recorded in writing,
the Special Court, competent to try the case under the Act, may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.
c. The publisher or owner of the media or studio or photographic facilities shall be jointly and severally
liable for the acts and omissions of his employee.

14 Protection of Children from Sexual Offences Act, 2012

d. Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to
be punished with imprisonment of either description for a period which shall not be less than six
months, but which may extend to one year or with fine or with both.”

Procedure of Recording Statement of the Child

In the year 2012, the Protection of Children from Sexual Offences Act was enacted to prevent sexual
offences relating to children. It came into force in the year 2012, it is applicable to the whole of India,
wherein, Section 24 to Section 27 deal with the Procedures for Recording Statement of the Child.

Recording of Statement of a Child

According to Section 24 of the Protection of Children from Sexual Offences Act, 2012,
(1) The statement of the child shall be recorded at the residence of the child or at a place where he
usually resides or at the place of his choice and as far as practicable by a woman police officer not
below the rank of sub-inspector.
(2) The police officer while recording the statement of the child shall not be in uniform.
(3) The police officer making the investigation, shall, while examining the child, ensure that at no
point of time the child come in the contact in any way with the accused.
(4) No child shall be detained in the police station in the night for any reason.
(5) The police officer shall ensure that the identity of the child is protected from the public media,
unless otherwise directed by the Special Court in the interest of the child.”
The POCSO Act, 2012 mandated the investigating officer to record the statement of the child victim
during investigation.
In Virender versus The State of NCT of Delhi, (Criminal Appeal No. 121/2008), the Delhi High Court issued
guidelines for the police to follow during investigation of cases:
(i) On a complaint of a cognizable offence involving a child victim being made, concerned police
officer shall record the complaint promptly and accurately.
(ii) Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate
steps shall be taken to associate a scientist from Forensic Science Laboratory or some
other laboratory or department in the investigations. The Investigating Officer shall conduct
investigations into the points suggested by him also under his guidance and advice.
(iii) The investigation of the case shall be referred to an officer not below the rank of sub-inspector,
preferably a lady officer, sensitised by imparting appropriate training to deal with child victims
of sexual crime.
(iv) The statement of the victim shall be recorded verbatim.
(v) The officer recording the statement of the child victim should not be in police uniform.
(vi) The statement of the child victim shall be recorded at the residence of the victim or at any
other place where the victim can make a statement freely without fear.
(vii) The statement should be recorded promptly without any loss of time.
(viii) The parents of the child or any other person in whom the child reposes trust and confidence
will be allowed to remain present.
(ix) The Investigating Officer to ensure that at no point should the child victim come in contact with
the accused.

Protection of Children from Sexual Offences Act, 2012 15

 (x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever,
including medical examination.
(xi) The Investigating Officer recording the statement of the child victim shall ensure that the victim
is made comfortable before proceeding to record the statement and that the statement carries
accurate narration of the incident covering all relevant aspects of the case.
(xii) In the event the Investigating Officer should feel the necessity, he may take the assistance of a
psychiatrist.
(xiii) The Investigating Officer shall ensure that the child victim is medically examined at the earliest
preferably within 24 hours (in accordance with Section 164A CrPC) at the nearest government
hospital or hospital recognised by the government.
(xiv) The Investigating Officer shall ensure that the investigating team visits the site of the crime at
the earliest to secure and collect all incriminating evidence available.
(xv) The Investigating Officer shall promptly refer for forensic examination clothing and articles
necessary to be examined, to the forensic laboratory which shall deal with such cases on
priority basis to make its report available at an early date.
(xvi) The investigation of the cases involving sexually abused child may be investigated on a
priority basis and completed preferably within ninety days of the registration of the case. The
investigation shall be periodically supervised by senior officer/s.
(xvii) The Investigating Officer shall ensure that the identity of the child victim is protected from
publicity.
(xviii) To ensure that the complainant or victim of crime does not remain in dark about the
investigations regarding his complaint/FIR, the complainant or victim shall be kept informed
about the progress of investigations. In case the complainant gives anything in writing and
requests the IO, for investigations on any particular aspect of the matter, the same shall be
adverted to by the IO. Proper entries shall be made by IO in case diaries in regard to the steps
taken on the basis of the request made by the complainant. The complainant, however, shall
not be entitled to know the confidential matters, if any, the disclosure of which may jeopardise
the investigations.
(xix) Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also
shall be done with a view to obviate subsequent objections to the genuineness of the dying
declaration.
(xx) The investigations for the aforesaid offences shall be personally supervised by the ACP of the
area. The concerned DCP shall also undertake fortnightly review thereof.
(xxi) The material prosecution witnesses cited in any of the aforesaid offences shall be ensured
safety and protection by the SHO concerned, who shall personally attend to their complaints,
if any.
(xxii) Wherever possible, the IO shall ensure that the statement of the child victim is also video
recorded.

Procedures for Recording of Statement of Child Victim

The procedure for recording the statement of child victim is contemplated under Section 164(5) Code
of Criminal Procedure, 1973, Section 25, 26 of POCSO Act, 2012 and Rule 11 of the Criminal Rules of
Practice 2019.

16 Protection of Children from Sexual Offences Act, 2012

Important directions as to recording statements under Section 164 Code of Criminal Procedure, 1973
including POCSO cases given by High Court of Madras in Murugasamy versus State, 2017 (4) MLJ
(CRL) 129. The procedures to record the statement of child victim is branched as follows for better
understanding:
1. Application for examination of witness
2. Ordering of summons/appearance
3. Competency of the child victim to depose evidence
4. Examination of child victim
5. Procedure after recording the statement

1. Application for Examination of Witness

a. A statement of a witness/victim can be recorded under Section 164 only at the instance of the
Investigating Officer of the case.
b. The investigating agency need not approach the CJM/CMM with an application for nominating a
Magistrate to record the 164(5) Code of Criminal Procedure, 1973 statement of a witness in a case.
c. The Special Courts constituted under various enactments need not forward such requests to the
CMM/CJM for nominating a Magistrate to record the statement of a witness under Section 164(5)
of the Code as they can record the same themselves.
d. A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the
statement of a witness/victim under Section 164 Code of Criminal Procedure, 1973 on the request
of the Investigating Officer.

2. Ordering of Summons/Appearance
The summons for appearance of the child victim should not be as a formal summons as sent to the
other witnesses. The docket order should read as to the following and summons for examining the
child victim need to:
a. Specify the exact time of recording of the statement.
b. Specify that the child victim to be accompanied by any one of the parents/persons who is in trust
and confidence with child.
c. If the court finds that the interpreter/expert/translator is necessary for examination of child victim
necessary summons need to be ordered on requisition of the Investigating Officer. Police officer
not to be employed to interpret the evidence of witnesses in cases prosecuted by the police.

4. Examination of Child Victim

a. The examination of the child victim to be in a child friendly manner in the presence of one of
parents/persons whom the child trusts and have confidence. (If the child is above 17 years age and
wish to depose by himself/herself the same shall be permitted).
b. To be recorded in own language of the children.
c. To be recorded in-camera.
d. If typist/staffs is sought for assistance while recording, possibly to be female typist/staffs.
e. Frequent breaks to be given.

Protection of Children from Sexual Offences Act, 2012 17

 f. If assistance of interpreter/translator/expert taken ascertain their expertise in the field before
commencing the recording and also to administer oath twice before commencement and after
trial as per Rule 37/39 of Criminal Rules of Practice, 2019.
g. In the course of recording such statement, if the Magistrate finds that the statement is self-
incriminating he shall not proceed to record further.
h. During the course of inquiry if the Judicial Magistrate finds that the child victim suffers mental
trauma due to the incident/need emergency medical assistance/need special care and protection/
need interim financial or educational assistance, to the best interest of child he/she shall by
himself/herself or on the application from the parent/care giver shall address district legal services
authority on the same.

5. Procedure after Recording the Statement

a. To take two photocopies of the statement under direct supervision.
b. After certifying them as true copies, issue one to the Investigating Officer, free of cost with direction
to the latter to use it only for the purpose of investigation and not to make its contents public,
until the investigation is completed and final report is filed.
c. If the Magistrate who had recorded the statement is himself/herself the jurisdictional magistrate,
he/she shall keep the original statement in the case records.
d. If the examination is video recorded and copied version in form of CD/DVD/pen-drive/memory
card, other than original chip from the recording instrument is submitted before you then 65-B IEA
8 1872, certificate from the videographer is mandatory.
Under special circumstances, the child victim statement can be treated as chief examination. Section
164(5A), CrPC. is of far-reaching significance in relation to trial of a rape case. Section 164(5A) CrPC
states that if the maker of the statement is temporarily or permanently, mentally or physically disabled,
the statement made by such a person shall be considered as substantive evidence by the Trial Court
and the maker need not be examined-in-chief, but, can be subjected to cross-examination on the
basis of the statement recorded under Section 164(5A) CrPC. This is to save the victim from the
embarrassment of explaining to the Trial Court, repeatedly, as to how he/she was sexually assaulted.
Since the statement recorded is to be treated as the chief examination due care to be taken while
recording the statement and it is to be ensured that all the guidelines are followed.

Procedural Differences in Recording Victim Statement and Accused Statement Recorded

under Section 164 CrPC, 1973

Victim Statement Accused Statement

Can approach the Judicial Magistrate/Presiding Need to approach the CJM/CMM with an
Officer of Special Court with an application to application for necessary nomination of Judicial
record the statement of a witness/victim under Magistrate to record the statement of an
164 CrPC accused under 164 CrPC

Oath needs to be administered for child witness Oath need not be administered
after testing the competency

Can be used for corroboration/contradiction Can be used against the accused/corroboration/

contradiction

18 Protection of Children from Sexual Offences Act, 2012

 Victim Statement Accused Statement
Child victim competency certificate is Memorandum of Magistrate recording the
mandatory under Section 118 of IEA Act statement in the foot of confession is
mandatory
No such explanation necessary Before recording confession, the Magistrate
shall explain to the person making it that he/
she is not bound to make a confession and if
he/she does so, it may be used as evidence
as against him/her. This is sine qua non for
recording confession
The Magistrate can interact with police officer if The Magistrate shall ensure that during the
necessary for any clarification questioning of the accused and the recording
of his statement, there are no police officers in
the vicinity
Only on instance of the Investigating Officer Not necessarily. Accused can also voluntarily
come front to give his/her statement
Advocate need not present at the time of Advocate can be present at the time of
recording recording
A statement recorded under clause (a) of a No confession shall be recorded by a police
person, who is temporarily or permanently officer on whom any power of Magistrate has
mentally or physically disabled, shall be been conferred under any law for the time being
considered a statement in lieu of examination- in force
in-chief, as specified in Section 137 of the Indian
Evidence Act, 1872 (1 of 1872) such that the
maker of the statement can be cross-examined
on such statement, without the need for
recording the same at the time of trial.
(Exception of principle laid down in Section 145
IEA, 1872)
While examination of the child victim, he/she The Magistrate shall not record the confession
should be accompanied by one of the parents/ unless upon questioning the person making it
persons whom he/she has trust and confidence and he/she has reason to believe that it is being
made voluntarily

Recording of Statement of a Child by Magistrate

As per Section 25 of the said Act,
“(1) If the statement of the child is being recorded under Section 164 of the Code of Criminal Procedure,
1973 (herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding
anything contained therein, record the statement as spoken by the child:
Provided that the provisions contained in the first proviso to sub-section (1) of Section 164 of the Code
shall, so far it permits the presence of the advocate of the accused shall not apply in this case.
(2) The Magistrate shall provide to the child and his parents or his representative a copy of the
document specified under Section 207 of the Code, upon the final report being filed by the police
under Section 173 of that Code.”

Protection of Children from Sexual Offences Act, 2012 19

 In the judgement of the Supreme Court Ganesan versus State represented by its Inspector of Police,
2020 (10) SCC 573, where in it was held that when the child witness/victim was mature, trustworthy
and reliable, and has been thoroughly and fully cross-examined, conviction can be based on sole
evidence of such victim in the case of sexual assault.
(3) Additional Provisions Regarding Statement to Be Recorded
“The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the
child in die presence of the parents of the child or any other person in whom the child has trust or
confidence.
Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance
of a translator or an interpreter, having such qualifications, experience and on payment of such fees as
may be prescribed, while recording the statement of the child.
The Magistrate or the police officer, as the case may be, may, in the case of a child having a mental or
physical disability, seek the assistance of a special educator or any person familiar with the manner
of communication of the child or an expert in that field, having such qualifications, experience and on
payment of such fees as may be prescribed, to record the statement of the child.
Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the
statement of the child is also recorded by audio-video electronic means.”

Medical Examination of Child

Until the enactment of POCSO Act, 2012 and the Criminal Law Amendment, 2013, it was observed that
health care providers laid emphasis only on collection of medico-legal evidence and largely ignored
treatment both physical treatment and psycho-social support of the survivor/victim.
Section 27 (1) of the Protection of Children from Sexual Offences Act, 2012 deals with medical
examination of a child. As per said Section, “The medical examination of a child in respect of whom
any offence has been committed under this Act, shall, notwithstanding that a First Information Report
or complaint has not been registered for the offences under this Act, be conducted in accordance with
Section 164A of the Code of Criminal Procedure, 1973.”
Section 27 of the POCSO Act states that medical examination of a child is to be conducted even before
FIR or complaint is registered. In case of girl child such examination is to be conducted by female
doctor.
The parents or the person in whom the child reposes trust or confidence is entitled to remain present
at the time of medical examination. If they are unable to remain present, then such examination is to
be conducted in the presence of a woman nominated by the head of the medical institution.
Section 357C CrPC states that all hospitals, whether public or private, shall immediately provide first
aid or medical treatment to survivors/victims of sexual violence free of cost and shall immediately
inform the police of such incident.
Section 166B IPC states that whoever, being in charge of a hospital, public or private, whether run
by the central government, the state government, local bodies or any other person, contravenes the
provisions of Section 357C of the CrPC, shall be punished with imprisonment for a term which may
extend to one year or with fine or with both.
In Dilip versus State of Madhya Pradesh, (2013) 14 SCC 331, the Supreme Court observed that, “It is
an obligation on the part of the state authorities and particularly, the Director General of Police and
Home Ministry of the State to issue proper guidelines and instructions to the other authorities as how

20 Protection of Children from Sexual Offences Act, 2012

to deal with such cases and what kind of treatment is to be given to the prosecutrix, as a victim of
sexual assault requires a totally different kind of treatment not only from the society but also from
the state authorities. Certain care has to be taken by the doctor who medically examines the victim of
rape. The victim of rape should generally be examined by a female doctor. Simultaneously, she should
be provided with the help of some psychiatrist. The medical report should be prepared expeditiously,
and the doctor should examine the victim of rape thoroughly and give his/her opinion with all possible
angles. The Investigating Officer must ensure that the victim of rape should be handled carefully by
lady police official/officer, depending upon the availability of such official/officer.”
In State of Tamil Nadu versus Raju @ Nehru, (2006) 10 SCC 534, the Apex Court ruled that “Rape is a
crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can be made by the medical officer is that there
is evidence of recent sexual activity. Whether rape has occurred or not is a legal conclusion, not a
medical one.” That is the reason why, even the opinion of the doctor that there was no evidence of
sexual intercourse or rape is at times held to be not sufficient to disbelieve the accusation of the rape
by victim.
In another landmark case State of Madhya Pradesh versus Dayal Sahu, AIR 2005 SC 3570, pertaining to
the sole testimony of the survivor. Here in, the accused in this case was a relative of the husband of
the prosecutrix, who came to her house as a guest. In the night he entered into the room of prosecutrix
in the guise of her husband and committed rape upon her by removing her clothes. On a query by her
as to who he was, he pressed her mouth. It was only then that she came to know that the man who
had sexual intercourse with her was not her husband. She immediately awakened her husband and
other family members. They found the accused in her room. The accused confessed to the guilt and
was then taken to the police station. Prosecutrix was medically examined by a lady doctor. However,
at the time of trial, prosecution did not take care to examine the lady doctor. The Trial Court relied
upon the consistent and reliable evidence of prosecutrix, her husband and other family members and
convicted the accused for the offence of rape punishable under Section 376 of IPC. In appeal, the High
Court however set aside the finding of guilt recorded by the Trial Court, mainly on the ground that non-
examination of the doctor and not providing of an opportunity to accused to cross-examine the doctor
was a fatal and great lacuna in prosecution case. It was further held that the medical report which was
on record also mentioned that no definite opinion can be given regarding commission of rape.
In the case of Gurcharan Singh versus State of Haryana, AIR 1972 SC 2661, the Supreme Court has held
that “the absence of injury or mark of violence on the private part on the person of the prosecutrix is
of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance
on the part of the prosecutrix. Further absence of violence or stiff resistance in the present case may
as well suggest helpless, surrender to the inevitable due to sheer timidity. In any event, her consent
would not take the case out of the definition of rape.”

Special Courts
For the purpose of providing a speedy trial, the State Government shall in consultation with the Chief
Justice of the High Court, by notification in the Official Gazette, designate each district, a Court of
Session to be a Special Court to try the offences under the POCSO Act, 2012, provided that, if a Court
of Session is notified as Children’s Court under the Commission for Protection of Child Rights Act, 2005
or a Special Court designated for similar purposes under any other law for the time being in force, then,
such Court shall be deemed to be a Special Court under Section 28 of the Act of 2012.

Protection of Children from Sexual Offences Act, 2012 21

 Whether the Special Court designated under Section 28 of the Protection of Children from Sexual
Offences Act, 2012 (as amended and as in force) is duty bound to initiate suo-moto proceedings for
grant of interim compensation to the victim child upon receipt of report forwarded by the concerned
IO in the report submitted under Section 157, CrPC, 1973?
The Special Courts (POCSO) as designated under Section 28 of the Protection of Children from Sexual
Offences Act, 2012 (as amended and as in force) should and are duly expected to peruse the contents
of each report, i.e., First Information Report (FIR) registered invoking sections of the POCSO Act, 2012
once the same are forwarded to them by the concerned Investigating Officer/local police and should
only acknowledge the same through signatures and seal/stamps post such perusal. The Special Courts
are special in terms of the jurisdiction vested to try cases under a specific statute requiring focus,
sensitivity and specialisation and therefore the justice demands that there should be pre-emptive
application of mind in determining the prima facie real need of the victim of crime about monetary
and non-monetary (medial needs and others) interim compensation considering immediate relief or
rehabilitation required and probable irreparable loss to the victim as well as administration of justice
which shall ensue, if the need is not attended to, by initiating suo-moto proceedings without waiting
for an application being preferred in that regard, which should be completed in a time bound manner,
the application being preferred in that regard, which should be completed in a time bound manner, the
specifics thereof may be defined by this Court.
The co-relation which may be necessitated later on during the trial may require or pre-suppose the use
of an abbreviation ‘NCSM (Not Considered Suo-Moto)’ while signing the reports by the Court, in cases
where suo-moto proceedings are not initiated, which shall automatically imply that the concerned
aggrieved party may approach the Court with details of their need through an application seeking such
compensation, which shall be assessed and adjudicated upon without taking into account the non-
exercise of suo-moto jurisdiction by the said or other Court.
The Courts, which sometimes wait till the completion of prosecution evidence of the child victim in order
to ensure bonafide in terms of need of interim compensation should not lose sight to the embedded
provisions in victim compensation schemes of the state wherein procedure to seek recovery of the
compensation wrongfully paid is generally prescribed and empowers the Court to initiate appropriate
recovery proceedings accordingly, if the need so arises, by taking reference and support of the decision
of the Delhi High Court in the matter of Raj Kumar versus State, (Criminal Appeal No. 187/2018) as was
pronounced on 3 December 2019.

Applicability of Code of Criminal Procedure, 1973 to Proceedings before a Special Court

Section 31 of the Act provides that “Save as otherwise provided in this act, the provisions of the
Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the
proceedings before a Special Court and for the purposes of the said provision, the Special Court shall
be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court,
shall be deemed to be a Public Prosecutor.”

Section 31 of the POCSO Act provides for application of the provisions of the code to proceedings
before the designated Special Court under the POCSO Act and for the purposes of the said provisions,
the Special Court shall be deemed to be a Court of Sessions. Section 31 which makes the provision
of the code applicable to proceedings under the POCSO Act, however, begins with “save as otherwise
provided in this Act”, which would imply that the provisions of the code would be applicable to
proceedings before the designated Special Court under the POCSO Act, unless otherwise provided
under the said Act.

22 Protection of Children from Sexual Offences Act, 2012

In this regard, it would also be relevant to notice that Section 42A of the POCSO Act mandates that
the provisions of the Act shall be in addition to and not in derogation with the provisions of any other
law for the time being in force and, in case of any inconsistency, the provisions of the Act shall have
overridden effect on the provisions of any such law to the extent of the inconsistency.

A conjoint reading of the afore stated provisions The designated Special Court, upon receipt
under Sections 31 and 42A would indicate that of the police report, transmitted through
unless a different procedure is provided under the the Magistrate, was fully empowered to
POCSO Act, the provisions under the Code would be take cognizance of the offence, without the
applicable; however, in case of any inconsistency, requirement of the accused being committed to
the provisions of the POCSO Act would have an it for trial, in view of the procedure prescribed
overriding effect. under sub-section (1) of Section 33 of the Act.

The High Court of Judicature at Allahabad in Ravi versus State of Uttar Pradesh, application bearing
number 5009 of 2021 preferred under section 482 of the code, decided on 16 December 2021, held that
“The POCSO Act being a special enactment the procedure prescribed therein would be required to be
followed. The applicability of the provisions of the Code as per the deeming clause under Section 31 of
the Act is only to the extent provided therein and in view of Section 42A the provisions of the Act shall
have an overriding effect on the provisions of any such law to the extent of inconsistency. This leads to
an inference that unless a different procedure is provided under the POCSO Act, the provisions under
the Code would be applicable; however, in case of any inconsistency, the provisions of the POCSO Act
would have an overriding effect.
Section 33(1) of the Act which empowers the Special Court to take cognizance of any offence, without
the accused being committed to it for trial, marks a departure from the general procedure under the
Code and in particular Section 193 thereof which stipulates that the Court of Session cannot take
cognizance of any offence as a court of original jurisdiction unless the case has been committed to it
by the Magistrate under the Code.
Sub-section (1) of Section 33 would therefore have the effect of waiving the otherwise mandatory
requirement of Section 193 of the Code and in a way, it lifts the embargo under Section 193. The procedure
provided under Section 33(1) with regard to the power of the Special Court to take cognizance, without
any committal of the accused, to the extent of any inconsistency, would override the general provisions
under the Code, by virtue of the provisions under Section 42A read with Section 31 of the POCSO Act.”

Presumption as to Certain Offences and Culpable Mental State of Accused

Section 29 and 30 of the POCSO Act, 2012 states the presumption of guilt that is cast on the accused
as soon as any prosecution is started under the said Act.
Section 29 of the POCSO Act states: Presumption as to certain offences, “Where a person is prosecuted
for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9
of this Act, the Special Court shall presume, that such person has committed or abetted or attempted
to commit the offence, as the case may be unless the contrary is proved).”
Whereas Section 30 of the POCSO Act states: Presumption of culpable mental state:
In any prosecution for any offence under this Act which requires a culpable mental state on the part
of the accused, the Special Court shall presume the existence of such mental state, but it shall be a
defence for the accused to prove the fact that he had no such mental state with respect to the Act
charged as an offence in that prosecution.

Protection of Children from Sexual Offences Act, 2012 23

 (For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to
exist beyond reasonable doubt and not merely when its existence is established by a preponderance
of probability.)

Section 29 of the POCSO Act creates a ‘presumption of guilt’ on the part of the accused if he/she is
prosecuted for committing, abetting or attempting certain offences. Section 30 therefore stipulates
that in a prosecution under the POCSO Act, where the offence requires the existence of a culpable
mental state, the court is to presume the existence of such culpable mental state on the part of the
accused, while of course giving to the accused the right to rebut it beyond reasonable doubt. Again
therefore, there is a presumption of culpability coupled with the right of the accused to rebut such
presumption.

The Delhi High Court on 11 January 2023 issued certain guidelines in the interest of the victim considering
the facts that she is not traumatised again and again by re-living the said incident by being present in
Court proceedings (Criminal Appeal No. 198/2020 titled Babu versus State). The Bench directed that
during bail hearings of a POCSO case, the following guidelines shall be adhered to:
y The Investigating Officer shall ensure that timely service of notice of bail application is made on the
victim/prosecutrix, so that he/she gets reasonable amount of time to enter appearance and make
her submissions.
y The Investigating Officer while serving notice/summons of the bail application to the victim/
prosecutrix shall make relevant inquiries about the victim and his/her circumstances and shall
document the same in order to assist the Court in the hearing of the bail application and to facilitate
effective representation and participation on behalf of the victim.
y The Investigating Officer should ensure that while making such enquiries the victim is not made to
feel uncomfortable or questioned like an accomplice to a crime.
y If the victim gives it in writing that his/her counsel/parent/guardian/support person shall appear
on his/her behalf and make submissions on the bail application, insistence on physical or virtual
presence of the prosecutrix should not be made. A written authorisation of the victim authorising
another to make submissions on her behalf (after victim is duly identified by the Investigating Officer)
and said authorisation is forwarded by the Station House Officer, should suffice.
y If the victim has appeared in Court on one date of hearing of a bail application, his/her presence
on subsequent dates can be dispensed with and either his/her counsel or parent representing the
victim in court can be permitted to make submissions on behalf of the victim. On the day of the first
appearance of the victim/prosecutrix, his/her submissions qua the bail application can be recorded
by the Court and the same maybe used for the purpose of adjudicating on the bail application.
y Further, after the bail application is disposed-off, the copy of the order should be mandatorily sent
to the victim.
In Navin Dhaniram Baraiye versus The State of Maharashtra, 2018 SCC Online Bom 1281, the Bombay
High Court has held as under:
“18. A perusal of the above quoted provision does show that it is for the accused to prove the contrary
and if he fails to do so, the presumption would operate against him leading to his conviction under
the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute, and every
presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of
the POCSO Act is absolute. It would come into operation only when the prosecution is first able to
establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act

24 Protection of Children from Sexual Offences Act, 2012

to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against
the accused under the provisions of the said Act and then claim that the evidence of the prosecution
witnesses would have to be accepted as gospel truth and further that the entire burden would be on
the accused to prove to the contrary. Such a position of law or interpretation of the presumption under
Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate
that no person shall be deprived of liberty except in accordance with procedure established by law.”
The Bench further stated that “24. The above quoted views of the Courts elucidate the position of law
insofar as presumption under Section 29 of the POCSO Act is concerned. It becomes clear that although
the provision states that the Court shall presume that the accused has committed the offence for which
he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only
upon the prosecution first proving foundational facts against the accused, beyond reasonable doubt.
Unless the prosecution can prove foundational facts in the context of the allegations made against the
accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate
against the accused. Even if the prosecution establishes such facts and the presumption is raised
against the accused, he can rebut the same either by discrediting prosecution witnesses through
cross-examination demonstrating that the prosecution case is improbable or absurd or the accused
could lead evidence to prove his defense, to rebut the presumption. In either case, the accused is
required to rebut the presumption on the touchstone of preponderance of probability.”
Section 29 of the POCSO Act is also only a rule shifting of the evidential burden in a prosecution.
Generally, in a criminal trial, the prosecution would fail even if the accused does not adduce any
evidence, or if the evidence adduced by the prosecution do not prove beyond reasonable doubt the
guilt of the accused. But, in a trial under the POCSO Act, Section 29 operates at the stage after the
stage under Section 232 of the Code. In other words, in a given case, if the prosecution adduces
evidence to prove the essential and foundational facts constituting the offence, notwithstanding its
reliability and trustworthiness, it will be presumed that the accused has committed or abetted or
attempted to commit the offence alleged against him/her, unless the contrary is proved by him/her, for
at this stage, onus to disprove the fact of commission of the offence shifts on to the accused.
In the context of Section 29 of the POCSO Act itself, the Bombay High Court has held in Sagar Dinanath
Jadhav versus State of Maharashtra, 2018 KHC 4701, that the accused has to rebut the presumption
raised against him under the said provision only on the principle of preponderance of probability. In
other words, it is clear that the standard of proof of innocence that is expected from the accused in
a case under the POCSO Act is only on the touchstone of preponderance of probability. It was further
held that while Section 30 of the POCSO Act clarifies that the culpable mental state on the part of the
accused is to be proved by the accused beyond reasonable doubt and not merely on the principle of
preponderance of probability, such a requirement is absent in Section 29 of the POCSO Act.
The presumption under Section 29 of the POCSO Act does not, in any way, affect the obligation of
the prosecution to produce admissible evidence which, if accepted, would constitute the offence and
when the prosecution produces admissible evidence to prove the foundational facts constituting the
offence, the accused must, at the pain of losing, prove that he/she did not commit the offence on the
principle of preponderance of probability. If he/she fails, the presumption applies and the evidential
burden being undischarged, the prosecution will be considered to have discharged its legal burden and
if he/she succeeds, the prosecution will be considered to have failed in discharging its legal burden in
establishing the guilt of the accused. In other words, the essence of Section 29 of the POCSO Act is
only that a higher degree of proof of facts constituting the guilt of the accused, as is usually insisted
in criminal trials, is not insisted from the prosecution in a case arising under the POCSO Act. The

Protection of Children from Sexual Offences Act, 2012 25

 Parliament has certainly the power to lay down a different standard of proof for certain offences or
certain pattern of crimes subject to the establishment of some foundational facts and the same would
not, therefore, affect any of the constitutional and established rights of the accused in such cases
[Harendra Sarkar versus State of Assam, (2008) 9 SCC 204].

Presumption under Section 29 vis-à-vis Bail Provision

The High Court of Jammu and Kashmir has recently held that the presumption of guilt against the
accused under Section 29 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 would
come in to play even during the pre-trial stage in Badri Nath versus Union Territory of J&K, Bail App. No.
139/2020, decided on 11-12-2020. The bench further held that in the bail proceedings, even at pre-trial
stage, it would open to an accused to highlight the circumstances/material or lack of it to show that
foundational facts are not established and, in this manner, the right available to an accused under the
later part of the provision contained in Section 29 of the POCSO Act would get safeguarded. It was
further held that at the time of considering the bail application of an accused, who has been booked
for the offences under Sections 3, 5, 7 and 9 of the POCSO Act, the presumption under Section 29 of
the said Act would come into play even at the pre-trial stage. The accused, of course, would have a
right to bring to the notice of the Court the material or lack of it to show that the foundational facts
giving rise to the presumption are prima facie not established in the case. Whereas the Bench at the
Delhi High Court had a contrary view in Dharmander Singh versus The State (Govt. of NCT of Delhi),
bail application bearing number 1559/2022 decided on 22-09-2020 and persuaded to hold that “the
presumption of guilt engrafted in Section 29 gets triggered and applies only once trial begins, that
is after charges are framed against the accused but not before that. The significance of the opening
words of Section 29 “where a person is prosecuted” is that until charges are framed, the person is not
being prosecuted but is being investigated or is in the process of being charged. Accordingly, if a bail
plea is considered at any stage prior to framing of charges, Section 29 has no application since upto
that stage an accused is not being prosecuted.”

Procedure and Powers of Special Court

Section 33 of the Act prescribes for the power entrusted with the special court under POCSO Act, 2012.
It states that:
“(1) A Special Court may take cognizance of any offence, without the accused being committed to it for
trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of
such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused
shall, while recording the examination-in-chief, cross-examination or re-examination of the child,
communicate the questions to be put to the child to the Special Court which shall in turn put
those questions to the child.
(3) The Special Court may, if it is considered necessary, permit frequent breaks for the child during
the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian,
a friend or a relative, in whom the child has trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive questioning or character assassination of the child
and ensure that dignity of the child is maintained at all times during the trial.

26 Protection of Children from Sexual Offences Act, 2012

(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the
course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure,
if in its opinion such disclosure is in the interest of the child.
(8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such
compensation as may be prescribed to the child for any physical or mental trauma caused to him
or for immediate rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any
offence under this Act, have all the powers of a Court of Session and shall try such offence as if it
were a Court of Session, and as far as may be, in accordance with the procedure specified in the
Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.”

Section 34: Procedure in Case of Commission of Offence by Child and Determination of Age
by Special Court
(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the
provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or
not, such question shall be determined by the Special Court after satisfying itself about the age of
such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof
that the age of a person as determined by it under sub-section (2) was not the correct age of that
person.
In Jarnail Singh versus State of Haryana, (2013) 7 SCC 263, it was held that the process of age
determination as per Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act, 2000) is
applicable to victims of crime as much as children in conflict with the law.
In K Muthu Mariappan versus The State Represented by the Inspector of Police, 2015 (3) MLJ (Crl) 429,
the Madras High Court held that in the absence of the prosecutrix’s birth certificate, an age inquiry can
be conducted by relying on other documents/certificates that prove her date of birth. In the present
case, the Court held that the certificates submitted by the prosecution, i.e., school matriculation
certificates (in the absence of the birth certificate), which contain the date of birth of the prosecutrix,
are public documents and will not lose their value at least as a corroborative piece of evidence for
want to examination of the person who gave the information regarding date of birth. The said document
would duly corroborate the evidence of the prosecutrix to prove her date of birth.
In Manoj Vishwakarma versus State of Chhattisgarh, Cr. Rev. No. 138/2017, the accused filed a revision
petition in the Chhattisgarh High Court as he was aggrieved by the order passed by the Special Judge
under the POCSO Act, which held that the applicant was not a juvenile on the alleged date of commission
of the offence. The accused challenged this order and argued for his juvenility under Section 102 of
the JJ Act, 2015. The Chhattisgarh High Court allowed the petition and held that in the present case,
the Special Judge had not determined the age of applicant in accordance with Section 94(2) of the JJ
Act, 2015. The Court held that the Special Judge had erred by relying on the “kotwari register”, which
was not a statutory document prescribed under Section 94 of the JJ Act 2015 for the purpose of
determining the age of the accused. The Court further held that, in the absence of a birth certificate or
a matriculation certificate, the Special Judge should have determined the age of the accused through
a bone ossification test or the latest medical age determination test.

Protection of Children from Sexual Offences Act, 2012 27

 Section 35: Period for Recording of Evidence of Child and Disposal of Case
(1) The evidence of the child shall be recorded within a period of 30 days of the Special Court taking
cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.

(2) The Special Court shall complete the trial, as far as possible, within a period of one year from the
date of taking cognizance of the offence.

In the case of Alakh Alok Srivastava versus Union of India, (2018) 17 SCC 291, the Supreme Court of India
laid down guidelines to be followed by the Special Courts while trying a case under the POCSO Act,
2012 so that the trial is completed within a period of one year from the date of taking cognizance of
the offence, as provided under Section 35 Act. The guidelines are provided as under:The High Courts
are responsible for ensuring that cases filed under the POCSO Act are heard and decided by Special
Courts and that the presiding officials of such Courts are trained in child protection and psychological
reaction.

1. If not previously done, the Special Courts should be constituted and given the role of dealing with
matters brought under the POCSO Act.

2. The Special Courts should be given instructions to expedite cases by not granting superfluous
adjournments and following the procedure outlined in the POCSO Act, allowing the trial to be
completed in a time-bound manner or within a certain time period set forth in the Act.

3. The Chief Justices of the High Courts have been asked to form a three-judge committee to control
and supervise the progress of the POCSO Act cases. In the event that three judges are not available,
the Chief Justices of the respective courts will form a Judge Committee.

4. A Special Task Force will be formed by the Director-General of Police or a state authority of
comparable rank to guarantee that the investigation is properly handled, and witnesses are
presented on the dates set before the Trial Courts.

5. The High Courts must make appropriate efforts to create a child-friendly environment in the
Special Courts, keeping in mind the requirements of the POCSO Act, to ensure that the spirit of
the Act is upheld.

Section 36: Child Not to See Accused at the Time of Testifying

(1) The Special Court shall ensure that the child is not exposed in any way to the accused at the time
of recording of the evidence, while at the same time ensuring that the accused is in a position to
hear the statement of the child and communicate with his advocate.

(2) For the purposes of sub-section (1), the Special Court may record the statement of a child through
video conferencing or by utilising single visibility mirrors or curtains or any other device.

Section 37: Trials to Be Conducted In-Camera

The Special Court shall try cases in camera and in the presence of the parents of the child or any other
person in whom the child has trust or confidence: Provided that where the Special Court is of the
opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a
commission in accordance with the provisions of Section 284 of the Code of Criminal Procedure, 1973
(2 of 1974).

28 Protection of Children from Sexual Offences Act, 2012

Section 38: Assistance of an Interpreter or Expert While Recording Evidence of a Child
(1) Wherever necessary, the Court may take the assistance of a translator or interpreter having such
qualifications, experience and on payment of such fees as may be prescribed, while recording the
evidence of the child.
(2) If a child has a mental or physical disability, the Court may take the assistance of a special
educator or any person familiar with the manner of communication of the child or an expert in that
field, having such qualifications, experience and on payment of such fees as may be prescribed to
record the evidence of the child.

Landmark Judgements

POCSO Act Includes Physical Age and Not Mental Age

Eera, through Dr Manjula Krippendorf versus State (Govt of NCT of Delhi)
AIR 2017 SC 3457: 2017 (8) SCALE 112: 2018 Cri LJ 186: 2017 (15) SCC 133
Decided on: 21-07-2017
Bench: Dipak Mishra and RF Nariman.
Facts: The Parliament felt it appropriate that the definition of the term “age” by chronological age
or biological age to be the safest yardstick than referring to a person having mental retardation. The
Parliament has not included mental age. It is within the domain of legislative wisdom. Procedure for
determination of age had been provided under Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2000.
Issue: Whether the tern “age” in the POCSO Act only includes physical age and not mental age?
Held: Section 2(12) of Juvenile Justice (Care and Protection of Children) Act, 2015 defines “child” to
mean a person who is not completed 18 years of age. Purpose of POCSO Act is to treat the minors as
a class by itself and treat them separately so that no offence is committed against them as regards
sexual assault, sexual harassment and sexual abuse. The sanguine purpose is to safeguard the interest
and well-being of the children at every stage of judicial proceeding. From a reading of the POCSO
Act, it is clear to us that it is gender neutral. In such a situation, to include the perception of mental
competence of a victim or mental retardation as a factor will, tantamount to causing violence to the
legislation by incorporating a certain words to the definition. By saying “age” would cover “mental
age” has the potential to create immense anomalous situations without there being any guidelines or
statutory provisions.
—————

Child Prostitution
Vishal Jeet versus Union of India
AIR 1990 SC 1412: 1990 Cri LJ 1469: 1990 (3) SCC 318: 1990 (2) SCR 861
Decided on: 02-05-1990
Bench: S Ratnavel Pandian and K Jayachandra Reddy, Supreme Court of India
Facts: PIL at the instance of Advocate as Writ Petition filed under Article 32 of Constitution of India
seeking issuance of certain directions, directing the Central Bureau of Investigation (1) to institute an
enquiry against those police officers under whose jurisdiction Red Light Areas (pg. no. 165).
Issue: Child prostitution – Directions.

Protection of Children from Sexual Offences Act, 2012 29

 Held: The Court directs that all State Governments and the Governments of Union Territories should
direct their concerned law enforcing authorities to take appropriate and speedy action under the
existing laws in eradicating child prostitution without giving room for any complaint of remissness or
culpable indifference.
—————

Supreme Court Guidelines

FIR
Youth Bar Association of India versus Union of India
AIR 2016 SC 4136: 2016 (8) SCALE 611: 2016 (9) SCC 473: 2017 Cri LJ 1093
Writ Petition (Crl.) No. 68 of 2016
Decided on: 07-09-2016
Bench: Dipak Misra and C Nagappan
Directions to be issued:
1. An accused is entitled to get a copy of the First Information Report at an earlier stage than as
prescribed under Section 207 of the CrPC.
2. An accused who has reasons to suspect that he has been roped in a criminal case and his
name may be finding place in a First Information Report can submit an application through his
representative/agent/parokar for grant of a certified copy before the concerned police officer or to
the Superintendent of Police on payment of such fee which is payable for obtaining such a copy
from the Court. On such an application being made, the copy shall be supplied within 24 hours.
3. Once the First Information Report is forwarded by the police station to the concerned Magistrate
or any Special Judge, on an application being filed for certified copy on behalf of the accused, the
same shall be given by the Court concerned within two working days. The aforesaid direction has
nothing to do with the statutory mandate inhered under Section 207 of the CrPC.
4. The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences
pertaining to insurgency, terrorism and of that category, offences under the POCSO Act and such
other offences, should be uploaded on the police website, and if there is no such website, on the
official website of the State Government, within 24 hours of the registration of the FIR so that
the accused or any person connected with the same can download the FIR and file appropriate
application before the Court as per law for redressal of his grievances. It may be clarified here that in
case there is connectivity problem due to geographical location or there is some other unavoidable
difficulty, the time can be extended up to 48 hours. The said 48 hours can be extended maximum
up to 72 hours and it is only relatable to connectivity problems due to geographical location.
5. The decision not to upload the copy of the FIR on the website shall not be taken by an officer
below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case,
the states where District Magistrate has a role, he may also assume the said authority. A decision
taken by the concerned police officer, or the District Magistrate shall be duly communicated to the
concerned jurisdictional Magistrate.
6. The word ‘sensitive’ apart from the other aspects which may be thought of being sensitive by
the competent authority as stated hereinbefore would also include concept of privacy regard

30 Protection of Children from Sexual Offences Act, 2012

 being had to the nature of the FIR. The examples given about the sensitive cases are absolutely
illustrative and are not exhaustive.
7. If an FIR is not uploaded it shall not ensure per se a ground to obtain the benefit under Section
438 of the CrPC.
8. In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person
grieved by the said action, after disclosing his/her identity, can submit a representation to the
Superintendent of Police or any person holding the equivalent post in the State. The Superintendent
of Police shall constitute a committee of three officers which shall deal with the said grievance. As
far as the Metropolitan Cities are concerned, where Commissioner is there, if a representation is
submitted to the Commissioner of Police who shall constitute a committee of three officers. The
committee so constituted shall deal with the grievance within three days from the date of receipt
of the representation and communicate it to the grieved person.
9. The competent authority referred to herein above shall constitute the committee, as directed
herein-above, within eight weeks from today.
10. In cases wherein decisions have been taken not to give copies of the FIR regard being had to the
sensitive nature of the case, it will be open to the accused/his authorised representative/parokar
to file an application for grant of certified copy before the Court to which the FIR has been sent
and the same shall be provided in quite promptitude by the concerned Court not beyond three
days of the submission of the application.
—————

Juvenile Justice System

Sampurna Behrua versus Union of India
2011 9 SCC 801: Writ Petition (C) No. 473/2005
Decided on: February 09-02-2018
Bench: Madan B Lokur
“Children are the future of the country and if they are not looked after, it is the future of the country
that is at stake.”
Directions were given keeping in mind the need to invigorate the juvenile justice system in the country.
1. The Ministry of Women and Child Development in the Government of India and the State
Governments should ensure that all positions in the NCPCR and the SCPRs are filled up well in
time and adequate staff is provided to these statutory bodies so that they can function effectively
and meaningfully for the benefit of the children.
2. The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great
earnestness keeping in mind the faith reposed in them by Parliament. A position in these statutory
institutions is not a sinecure. These bodies have a very significant and proactive role to play in
improving the lives of children across the country.
3. The State level Child Protection Societies and the District level Child Protection Units have an
enormous responsibility in ensuring that the JJ Act is effectively implemented, and child care
Institutions are managed and maintained in a manner that is conducive to the wellbeing of children
in all respects including nutrition, education, medical benefits, skill development and general living
conditions. These two bodies would be well advised to take the assistance of NGOs and civil
society to ensure that the JJ Act serves the purpose for which it is enacted by the Parliament.

Protection of Children from Sexual Offences Act, 2012 31

 4. The State Governments must ensure that all positions in the JJBs and CWCs are filled up expeditiously
and in accordance with the Model Rules or the Rules framed by the State Government. Any delay
in filling up the positions might adversely impact on children, and this should be avoided.
5. The JJBs and CWCs must appreciate that it is necessary to have sittings on a regular basis so that
a minimal number of inquiries are pending at any given point of time and justice is given to all
juveniles in conflict with law and social justice to children in need of care and protection. This is
a constitutional obligation.
6. The NCPCR and the SCPCRs must carry out time-bound studies on various issues, as deemed
appropriate, under the JJ Act. Based on these studies, the State Governments and the Union
Territories must take remedial steps.
7. In particular the NCPCR and the SCPCRs must carry out a study to estimate the number of Probation
Officers required for the effective implementation of the JJ Act. Based on this study, the State
Government must appoint the necessary number of Probation Officers. It must be emphasised
that the role of a Probation Officer is critical for the rehabilitation and social reintegration of a
juvenile in conflict with law and due importance must be given to their duties as postulated in the
Model Rules and Rules, if any, framed by the State Governments and the Union Territories.
8. The MWCD must continue to make creative use of information and communication technology
not only for the purpose of collecting data and information but also for other issues connected
with the JJ Act such as having a database of missing children, trafficked children and for follow
up of adoption cases, etc. With the utilisation of technology to the fullest extent, administrative
efficiency will improve considerably, which in turn will have a positive impact on the lives of
children.
9. It is important for the police to appreciate their role as the first responder on issues pertaining
to offences allegedly committed by children as well as offences committed against children.
There is therefore a need to set up meaningful Special Juvenile Police Units and appoint Child
Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In this context,
it is necessary to clearly identify the duties and responsibilities of such Units and Officers and
wherever necessary, guidance from the available expertise, either the National Police Academy or
the Bureau of Police Research and Development or NGOs must be taken for the benefit of children.
10. The National Police Academy and State Police Academies must consider including child rights as
a part of their curriculum on a regular basis and not as an isolated or sporadic event.
11. The management of child care institutions is extremely important, and State Governments and
Union Territories would be well advised to ensure that all such institutions are registered so that
children can live a dignified life in these institutions and issues of missing children and trafficking
are also addressed.
12. The State Governments and Union Territories would be well advised to appoint eminent persons
from civil society as visitors to monitor and supervise the child care institutions in all districts.
This will ensure that the management and maintenance of these institutions are addressed. We
have no doubt that the State Legal Service Authorities and the District Legal Service Authorities
will extend full assistance and cooperation to the government authorities in this venture as well
as to the visitors.
13. The JJ Fund is a bit of an embarrassment with an absence of an effective response from the
State Governments and the Union Territories. If financial resources are not made available for the
welfare of the children, we shudder to think what could be better utilisation of the funds.

32 Protection of Children from Sexual Offences Act, 2012

14. NALSA has done a remarkable job in collecting data and information relating to the JJ Act, as
evidenced by the three-part report prepared by it. We request NALSA to carry forward the exercise
and complete a similar report preferably before 30 April 2018 to assist all the policy making and
decision taking authorities to plan out their affairs.
15. The importance of training cannot be over-emphasized. It is vital for understanding and appreciating
child rights and for the effective implementation of the JJ Act. All authorities such as JJBs and
CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection
Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of child
care institutions must be sensitised and given adequate training relating to their position. A very
positive step has been taken in this regard by NALSA and we expect the NCPCR with the assistance
of the SCPCRs to carry forward this initiative so that there is meaningful implementation of the JJ
Act.
16. Since the involvement of the State Governments and the Union Territories is critical to child
rights and the effective implementation of the JJ Act, it would be appropriate if each High
Court and the Juvenile Justice Committee of each High Court continues its proactive role in the
welfare of children in their State. To make the involvement and process more meaningful, we
request the Chief Justice of every High Court to register proceedings on its own motion for the
effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so
that roadblocks if any, encountered by statutory authorities and the Juvenile Justice Committee of
the High Court are meaningfully addressed after hearing the concerned governmental authorities.
A copy of this judgement and order should be sent by the Secretary General of this Court to the
Registrar General of each High Court to be placed before the Chief Justice of every High Court for
initiating suo-motu proceedings.
—————

Objective Type Questions

1. Under Section 29 of the POCSO Act, 2012 committed or abetted or attempted to commit
where a person is prosecuted for committing the offence, as the case may be unless the
or abetting or attempting to commit any contrary is proved.
offence under Sections 3, 5, 7 and 9 of this 2. How many sections and chapters have been
Act, the ______ presume, the such person provided under the POCSO Act?
has committed or abetted or attempted to (A) 45 Sections and XI Chapters
commit the offence, as the case may be (B) 46 Sections and IX Chapters
unless the contrary is proved. (C) 45 Section and VIII Chapters
(A) District Court may (D) 44 Sections and XII Chapters
(B) District Court shall Ans. (B)
(C) Special Court may The Protection of Children from Sexual Offences
(D) Special Court shall Act, 2012 is a comprehensive law. This Act provide
Ans. (D) for the legal provisions of children below 18 years
Section 29: Presumption as to certain offences: of age and from sexual abuse and exploitation.
where a person is prosecuted for committing or This Act contains 46 sections and IX chapters and
abetting or attempting to commit any offence a schedule wherein it provides for the penetrative
under Sections 3, 5, 7 and 9 of this Act, the sexual assault ad punishment thereof, aggravated
Special Court shall presume, the such person has penetrative sexual assault, sexual assault,

Protection of Children from Sexual Offences Act, 2012 33

 other sexual offences against children, child monitor the implementation of the provisions of
pornography and its punishment thereof. this Act in such manner as may be prescribed.
3. Which among the following judges authored (2) The National Commission or, as the case may
the majority opinion in Attorney General of be, the State Commission, referred to in sub-
India versus Satish, 2021 SCC Online SC 42, section (1), shall, while inquiring into any matter
where it was held that the main ingredient of relating to any offence under this Act, have
the offence of sexual assault under section 7 the same powers as are vested in it under the
of the act was “sexual intent” and not “skin- Commissions for Protection of Child Rights Act,
to-skin” contact? 2005 (4 of 2006).
(A) Justice UU Lalit (3) The National Commission or, as the case may
(B) Justice DY Chandrachud be, the State Commission, referred to in sub-
(C) Justice Ravindra Bhatt section (1), shall, also include, its activities under
(D) Justice Bela M Trivedi this section, in the annual report referred to in
Ans. (A) section 16 of the Commissions for Protection of
Justice Uday Umesh Lalit in Attorney General Child Rights Act, 2005 (4 of 2006).]
of India versus Satish, 2021 SCC Online SC 42, 5. Which articles under the Indian Constitution
by interpreting the words “touch” and “physical correctly depict the grounds for development
contact” as not being restricted to “skin-to-skin” of the POCSO Act, 2012?
contact and further reinforcing the supremacy (A) Article 19 read with Article 45
of “sexual intent” in determining the offence (B) Article 14 read with Article 40
of “sexual assault, has upheld the well-settled (C) Article 15 read with Article 39
principle that no travesty can be allowed to a (D) Article 23 read with Article 54
statute or its provision and has dismissed and Ans: (C)
rejected technical pleas and irrelevant rules of Article 15 of the Constitution, inter alia, confers
construction which would have the effect of upon the State powers to make special provisions
defeating the statutory design and intent. The for children. Further, Article 39, inter alia, provides
interpretation made by the Bombay High Court that the State shall in particular direct its policy
was considered as de hors the purpose and towards securing that the tender age of children
object of the statute and set aside. is not to abused and their childhood and youth
4. Which authority is responsible for monitoring are protected against exploitation, and they are
the implementation of the POCSO Act, 2012? giving facilities to develop in a healthy manner
(A) State Legal Service Authority and in conditions of freedom and dignity.
(B) Central Government 6. Once the Special Court has taken cognizance
(C) High Courts of offence under POCSO, the evidence of
(D) National Commission for Protection of child shall be recorded with a period of:
Child Rights (A) 7 days
Ans. (D) (B) 15 days
Section 44: Monitoring of implementation of Act: (C) 30 days
(1) The National Commission for Protection of (D) 45 days
Child Rights constituted under section 3, or as the Ans. (C)
case may be, the State Commission for Protection Section 35: Period of recording of evidence of
of Child Rights constituted under section 17, of child and disposal of case:
the Commissions for Protection of Child Rights (1) The evidence of the child shall be recorded
Act, 2005 (4 of 2006) shall, in addition to the within a period of 30 days of the Special
functions assigned to them under that Act, also Court taking cognizance of the offence and

34 Protection of Children from Sexual Offences Act, 2012

 reasons for delay, if any, shall be recorded by (2) For the purposes of this section, a fact is
the Special Court. said to be proved only when the Special
(2) The Special Court shall complete the trial, as Court believes it to exist beyond reasonable
far as possible, within a period of one year doubt and not merely when its existence
from the date of taking cognizance of the is established by a preponderance of
offence. probability.
Explanation: In this section, “culpable mental
7. Which section provides for trial to be
state” includes intention, motive, knowledge of a
conducted in-camera?
fact and the belief in, or reason to believe, a fact.]
(A) Section 36
9. Mark the incorrect:
(B) Section 37
(A) Designation of special courts: Section 28
(C) Section 38
(B) Public awareness about act: Section 42A
(D) Section 39
(C) Special Public Prosecutor: Section 32
Ans. (B)
(D) Child not to see accused at the time of
Section 37: The Special Court shall try cases in
testifying: Section 35
camera and in the presence of the parents of
Ans. (D)
the child or any other person in whom the child
Section 36: Child not to see accused at the time
has trust or confidence: Provided that where
of testifying:
the Special Court is of the opinion that the child
(1) The Special Court shall ensure that the child
needs to be examined at a place other than the
is not exposed in any way to the accused at
court, it shall proceed to issue a commission in
the time of recording of the evidence, while
accordance with the provisions of section 284 of
at the same time ensuring that the accused
the Code of Criminal Procedure, 1973 (2 of 1974).
is in a position to hear the statement of the
8. In any prosecution of any offence under child and communicate with his advocate.
POCSO, where the prosecution has proved
(2) For the purposes of sub-section (1), the
its case by proving the basic facts, the court
Special Court may record the statement of
shall raise a statutory presumption as to the
a child through video conferencing or by
existence of such culpable mental state.
utilising single visibility mirrors or curtains
But such presumption can be rebutted by
or any other device.
accused proving its defence:
Section 35: Period of recording of evidence of
(A) on the basis of preponderance of
child and disposal of case:
probability.
(1) The evidence of the child shall be recorded
(B) beyond reasonable doubt.
within a period of 30 days of the Special
(C) depends upon discretion of the court.
Court taking cognizance of the offence and
(D) beyond an iota of doubt.
reasons for delay, if any, shall be recorded by
Ans. (B)
the Special Court.
Section 30: Presumption of culpable state:
(2) The Special Court shall complete the trial, as
(1) In any prosecution for any offence under
far as possible, within a period of one year
this Act which requires a culpable mental
from the date of taking cognizance of the
state on the part of the accused, the Special offence.
Court shall presume the existence of such
mental state but it shall be a defence for 10. The presumption under Section 29 of the
POCSO Act:
the accused to prove the fact that he had
no such mental state with respect to the act (A) Presumption juris
charged as an offence in that prosecution. (B) Presumption huminis

Protection of Children from Sexual Offences Act, 2012 35

 (C) Conclusive proof (C) Information Technology Act, 2000
(D) Any of the above (D) Juvenile Justice (Care and protection)
Ans. (B) Act, 2015
Section 29: Presumption as to certain offences: Ans. (B)
where a person is prosecuted for committing or Section 2, sub-clause (2): The words and
abetting or attempting to commit any offence expressions used herein and not defined but
under Sections 3, 5, 7 and 9 of this Act, the defined in the Indian Penal Code(45 of 1860), the
Special Court shall presume, the such person has Code of Criminal Procedure, 1973(2 of 1974), 2 [the
committed or abetted or attempted to commit Juvenile Justice (Care and Protection of Children)
the offence, as the case may be unless the Act, 2015 (2 of 2016)] and the Information
contrary is proved.] Technology Act, 2000 (21 of 2000) shall have the
11. In case the ______ is a girl child, the medical meanings respectively assigned to them in the
examination shall be conducted by a woman said Codes or the Acts.

doctor. 13. Which section of the POCSO Act defines

(A) Victim ‘Shared Household’?
(B) Complainant (A) Section 2(d)
(C) Accomplice (B) Section 2(f)
(D) Prosecutrix (C) Section 2(k)
Ans: (A) (D) Section 2(j)
Section 27: Medical examination of child: Ans. (C)
(1) The medical examination of a child in respect 14. The Preamble of the POCSO Act, 2012 does
of whom any offence has been committed under not seek to protect children from:
this Act, shall, notwithstanding mat a First (A) sexual intent.
Information Report or complaint has not been (B) sexual assault.
registered for the offences under this Act, be (C) sexual harassment.
conducted in accordance with Section 164A of (D) pornography.
the Code of Criminal Procedure, 1973 (2 of 1974). Ans. (A)
(2) In case the victim is a girl child, the medical The POCSO Act is an act to protect children from
examination shall be conducted by a woman offences of sexual assault, sexual harassment
doctor. and pornography and provide for establishment
(3) The medical examination shall be conducted of Special Courts for trial of such offences and
in the presence of the parent of the child or any for matters connected therewith or incidental
other person in whom the child reposes trust or thereto.
confidence. 15. A person is said to commit “penetrative
(4) Where, in case the parent of the child or other sexual assault” if:
person referred to in sub-section (3) cannot
(A) he penetrates his penis, to any extent,
be present, for any reason, during the medical
into vagina, mouth, urethra, or anus of
examination of the child, the medical examination
child or makes the child to do so with
shall be conducted in the presence of a woman
him or any other person; or
nominated by the head of the medical institution.
(B) he inserts, to any extent, any object or
12. Which among the following is not to be read a part of the body, not being the penis,
as “Pari Materia” for the words and expression into the vagina, the urethra or anus of
used under the POCSO Act, 2012? the child or makes the child to do so
(A) Code of Criminal procedure, 1973 with him or another person.
(B) Indian Evidence Act, 1863

36 Protection of Children from Sexual Offences Act, 2012

 (C) Either (A) or (B) 16. As per Section 42, which among the following
(D) None of the above offences under the Indian Penal Code, 1860
Ans. (C) are not included within the purview of
Section 3: Penetrative Sexual Assault: A person ‘alternate punishment’?
is said to commit “penetrative sexual assault” if: (A) Section 166A
(1) he penetrates his penis, to any extent, into (B) Section 509
the vagina, mouth, urethra, or anus of a child (C) Section 67B
or makes the child to do so with him or any (D) Section 376
other person; or
Ans. (C)
(2) he inserts, to any extent, any object or a Section 42: Alternate punishment: Where an act
part of the body, not being the penis, into or omission constitutes an offence punishable
the vagina, the urethra or anus of the child under this Act and also under Sections 166A,
or makes the child to do so with him or any 354A, 354B, 354C, 354D, 370, 370A, 375, 376,
other person; or 376A, 376C, 376D, 376E or Section 509 of the
(3) he manipulates any part of the body of the Indian Penal Code (45 of 1860), or Section 67B
child so as to cause penetration into the of the Information Technology Act, 2000 (21 of
vagina, urethra, anus or any part of body of 2000)] then, notwithstanding anything contained
the child or makes the child to do so with in any law for the time being in force, the offender
him or any other person; or found guilty of such offence shall be liable to
(4) he applies his mouth to the penis, vagina, punishment only under this Act or under the
anus, urethra of the child or makes the child Indian Penal Code as provides for punishment
to do so to such person or any other person. which is greater in degree.

Previous Years’ Questions

17. According to Section 25 of the Protection as the Code), the Magistrate recording such
of Children from Sexual Offences Act, 2012, statement shall, notwithstanding anything
statement of a child under Section 164 of the contained therein, record the statement as
Code of Criminal Procedure to be recorded spoken by the child:
by the Magistrate: Provided that the provisions contained in
[RJS (Pre.), 2015] the first proviso to sub-section (1) of Section
(A) shall be recorded in presence of the 164 of the Code shall, so far it permits the
advocate of the accused. presence of the advocate of the accused
(B) shall not be recorded in presence of the shall not apply in this case.
advocate of the accused. (2) The Magistrate shall provide to the child and
(C) shall be recorded in presence of the his parents or his representative, a copy of
Investigating Officer. the document specified under Section 207
(D) shall be recorded in presence of woman of the Code, upon the final report being filed
police officer. by the police under Section 173 of that Code.
Ans. (B) 18. Which of following conditions, as per
Section 25 of the Protection of Children from provisions of the Protection of Children from
Sexual Offences Act, 2012 Sexual Offences Act, 2012, has to be adhered
Recording of statement of a child by Magistrate: to while examining or recording statement of
(1) If the statement of the child is being recorded the child:
under Section 164 of the Code of Criminal [RJS (Pre.), 2015]
Procedure, 1973 (2 of 1974) (herein referred to

Protection of Children from Sexual Offences Act, 2012 37

 (A) the statement of child shall be recorded Section 24 of the Protection of Children from
at the residence of child or the place Sexual Offences Act, 2012
where he/she usually resides or the Recording of statement of a child:
place of his/her choice. (1) The statement of the child shall be recorded
(B) as far as practicable the statement at the residence of the child or at a place where
should be recorded by woman police he/she usually resides or at the place of his/her
officer not below the rank of sub- choice and as far as practicable by a woman police
inspector, who shall not be in uniform. officer not below the rank of sub-inspector.
(C) the Investigating Officer shall ensure (2) The police officer while recording the
that at no point of time the child comes statement of the child shall not be in uniform.
in contact in any way with the accused. (3) The police officer making the investigation,
(D) All of the above shall, while examining the child, ensure that at
Ans. (D) no point of time the child come in the contact in
Section 24 of the Protection of Children from any way with the accused.
Sexual Offences Act, 2012 (4) No child shall be detained in the police station
Recording of statement of a child: The statement in the night for any reason.
of the child shall be recorded at the residence (5) The police officer shall ensure that the identity
of the child or at a place where he/she usually of the child is protected from the public media,
resides or at the place of his/her choice and as unless otherwise directed by the Special Court in
far as practicable by a woman police officer not the interest of the child.
below the rank of sub-inspector. 20. Under the provisions of Protection of Children
The police officer while recording the statement from Sexual Offences Act, 2012, can a report
of the child shall not be in uniform. be published by the media, which discloses
The police officer making the investigation, shall, the identity of a sexually assaulted child.
while examining the child, ensure that at no point (A) Cannot be published
of time the child come in the contact in any way (B) Can be published in public interest
with the accused. (C) Can be published, if permitted by
No child shall be detained in the police station in competent Special Court
the night for any reason. (D) None of the above
The police officer shall ensure that the identity Ans. (C)
of the child is protected from the public media, Section 23 of Protection of Children from Sexual
unless otherwise directed by the Special Court in Offences Act, 2012
the interest of the child. Procedure for media:
19. Who of the following police officers is (1) No person shall make any report or present
empowered to record statement of a child comments on any child from any form of media
under Section 24 of the Protection of Children or studio or photographic facilities without having
from Sexual Offences Act, 2012? complete and authentic information, which may
[RJS (Pre.), 2016] have the effect of lowering his/her reputation or
(A) Constable infringing upon his/her privacy.
(B) Any woman police officer (2) No reports in any media shall disclose, the
(C) Woman police officer not below the rank identity of a child including his/her name,
of sub-inspector address, photograph, family details, school,
(D) Woman police officer not below the rank neighbourhood or any other particulars which
of Deputy Superintendent of Police may lead to disclosure of identity of the child:
Ans. (C)

38 Protection of Children from Sexual Offences Act, 2012

Provided that for reasons to be recorded in and provision of that Code shall have effect
writing, the Special Court, competent to try the accordingly (Section 32 of POCSO Act, 2012).
case under the Act, may permit such disclosure,
22. Provisions of Sections 3 to 13 of the
if in its opinion such disclosure is in the interest
Protection of Children from Sexual Offences
of the child.
Act, 2012, shall not apply in case of medical
(3) The publisher or owner of the media or studio
examination or medical treatment of a child
or photographic facilities shall be jointly and
severally liable for the acts and omissions of his/ when:
her employee. [RJS (Pre.), 2021–22]
(4) Any person who contravenes the provisions of (A) such medical examination or medical
sub-section (1) or sub-section (2) shall be liable treatment is undertaken with the
to be punished with imprisonment of either consent of child himself.
description for a period which shall not be less (B) such medical examination or medical
than six months, but which may extend to one treatment is undertaken with the
year or with fine or with both. consent of the Court.
21. Under Section 32 of the Protection of (C) such medical examination or medical
Children from Sexual Offences Act, 2012, a treatment is undertaken with the
person shall be eligible to be appointed as a consent of the child’s parents.
Special Public Prosecutor only if he/she had (D) such medical examination or medical
been: treatment is undertaken under direction
(A) in practice for not less than three years and presence of police.
as an advocate.
Ans. (C)
(B) in practice for not less than five years as
Provisions of Sections 3 to 13 not to apply in
an advocate.
certain cases. The provisions of Sections 3 to 13
(C) in practice for not less than seven years
(both inclusive) shall not apply in case of medical
as an advocate.
examination or medical treatment of a child when
(D) in practice for not less than two years as
such medical examination or medical treatment
an advocate.
Ans. (C) is undertaken with the consent of his parents or
Special public prosecutors: guardian (Section 41 of the POCSO Act, 2012).
(1) The State Government shall, by notification 23. For the purpose of Section 23 of the
in the Official Gazette, appoint a Special Protection of Children from Sexual Offences
Public Prosecutor for every Special Court for Act, 2012, which among the following is not
conducting cases only under the provisions correct?
of this Act. [RJS (Pre.), 2021–22]
(2) A person shall be eligible to be appointed (A) No report in any media shall disclose the
as a Special Public Prosecutor under sub- identity of a child.
section (1) only if he/she had been in (B) The publisher or the owner of the media
practice for not less than seven years as an shall be jointly and severally liable for the
advocate. acts and omissions of his/her employee.
(3) Every person appointed as a Special Public (C) On contravention of the provisions of
Prosecutor under this section shall be sub-section (1) or (2) of Section 23, the
deemed to be a Public Prosecutor within the accused shall be liable to be punished
meaning of Clause (u) of Section 2 of the with imprisonment of either description
Code of Criminal Procedure, 1973 (2 of 1974) for a period which shall not be less than

Protection of Children from Sexual Offences Act, 2012 39

 one year, but which may extend to two 25. Which of the following is true is Shyam is
years or with fine or with both. accused of a crime?
(D) None of the above [DJS (Pre.), 2022]
Ans. (C)
(A) The fact that after the commission of
Section 23: Procedure for media
the crime, Shyam absconded from his
(1) No person shall make any report or present
house is irrelevant.
comments on any child from any form of media
or studio or photographic facilities without having (B) The fact that, at the time when he left
complete and authentic information, which may home, Shyam had sudden and urgent
have the effect of lowering his/her reputation or business at the place to which he went,
infringing upon his/her privacy. is irrelevant.
(2) No reports in any media shall disclose, the (C) The details of the business which he
identity of a child including his name, address,
left are not relevant even if it were to
photograph, family details, school, neighbourhood
show that the business was sudden and
or any other particulars which may lead to
urgent.
disclosure of identity of the child:
Provided that for reasons to be recorded in (D) None of the above
writing, the Special Court, competent to try the Ans. (D)
case under the Act, may permit such disclosure,
26. When existence of a state of mind or body
if in its opinion such disclosure is in the interest
of the child. or bodily feeling is in issue, which of the
(3) The publisher or owner of the media or studio following facts are relevant?
or photographic facilities shall be jointly and [DJS (Pre.), 2022]
severally liable for the acts and omissions of his/ (A) Intention and knowledge
her employee.
(B) Negligence and rashness
(4) Any person who contravenes the provisions of
sub-section (1) or sub-section (2) shall be liable (C) Ill will or good will
to be punished with imprisonment of either (D) All of the above
description for a period which shall not be less Ans. (D)
than six months, but which may extend to one Facts showing the existence of any state of
year or with fine or with both (Section 23 of the
mind such as intention, knowledge, good faith,
POCSO Act, 2012).
negligence, rashness, ill-will or good-will towards
24. Which of the following is true? any particular person or showing the existence of
For deciding the question as to whether a any state of body or bodily feeling are relevant,
document is a Will of Mohan: when the existence of any such state of mind or
(A) the fact that Mohan made inquiries from body or bodily feeling, is in issue or relevant.
his friends into matters to which the Explanation 1: A fact relevant as showing the
provisions of the Will relate is irrelevant. existence of a relevant state of mind must show
(B) the fact that Mohan consulted advocates that the state of mind exists, not generally, but
in reference to making the Will is in reference to the particular matter in question.
irrelevant.
Explanation 2: But where, upon the trial of a
(C) the fact that from Mohan’s personal
person accused of an offence, the previous
locker several drafts of other Wills
commission by the accused of an offence is
are found which he did not approve is
relevant within the meaning of this section, the
irrelevant.
previous conviction of such person shall also be
(D) None of the above
a relevant fact [Section 14 of the Indian Evidence
Ans. (D)
Act].

40 Protection of Children from Sexual Offences Act, 2012

27. Statements of a person who is dead are relevant whether the person who made them was
admissible under Section 32 of the Evidence or was not, at the time when they were made,
Act if: under expectation of death, and whatever may be
[DJS (Pre.), 2022] the nature of the proceeding in which the cause
(A) it relates to the cause of his/her own of his/her death comes into question [Section
death. 32(1) of the Indian Evidence Act].
(B) it relates to the cause of someone else’s 28. Under Section 45 of the Evidence Act, the
death. opinion of an expert can be for:
(C) it relates to his/her own or someone [DJS (Pre.), 2022]
else’s death. (A) handwriting or finger impression.
(D) Both (B) and (C) are correct (B) foreign law, science or art.
Ans. (A) (C) Both (A) and (B)
Statement of a person who is dead is admissible (D) Neither (A) nor (B)
under Section 32 of the Evidence Act if it relates Ans. (C)
to the cause of his/her own death.
The opinion of an expert may be obtained under
Statements, written or verbal, of relevant facts
Section 45 of the Evidence Act in relation to
made by a person who is dead, or who cannot
science, art, foreign law, finger impression and
be found, or who has become incapable of
handwriting/signature.
giving evidence, or whose attendance cannot
When the Court has to form an opinion upon a
be procured without an amount of delay or
point of foreign law or of science, or art, or as to
expense which under the circumstances of the
identity of handwriting, or finger impression, the
case appears to the Court unreasonable, are
opinions upon that point of persons especially
themselves relevant facts in the following cases:
skilled in such fields are relevant facts. Such
When it relates to cause of death: When the
persons are called experts [Section 45 of the
statement is made by a person as to the cause of
Indian Evidence Act].
his/her death, or as to any of the circumstances
y Opinion of handwriting expert can be acted
of the transaction which resulted in his/her death,
upon without corroboration.
in cases in which the cause of that person’s
death comes into question. Such statements are y Opinion of an expert is supportive in nature.

Recent and Relevant Cases

Nawabuddin versus State of Uttarakhand, 2022 LiveLaw (SC) 142: 2022 SCC Online SC 161
Point/s to note: POCSO; Section 5; Section 6; act of sexual assault or sexual harassment; sexual
pleasure; penetrative sexual assault.
Aggravated Penetrative Sexual Assault
y Any act of sexual assault or sexual harassment to the children should be viewed very seriously
and all such offences of sexual assault, sexual harassment on the children must be dealt with in
a stringent manner and no leniency should be shown to a person who has committed the offence
under the POCSO Act. By awarding a suitable punishment commensurate with the act of sexual
assault, sexual harassment, a message must be conveyed to the society at large that, if anybody
commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children
for pornographic purposes they shall be punished suitably, and no leniency shall be shown to them.
Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex
where even innocent children are not spared in pursuit of such debased sexual pleasure.

Protection of Children from Sexual Offences Act, 2012 41

 y In the present case, it has been established and proved that the accused penetrated his finger in the
vagina and because of that the victim girl felt pain and irritation in urination as well as pain on her
body and there was redness and swelling around the vagina found by the doctor. Court was of the
opinion that therefore the case would fall under Section 3(b) of the POCSO Act, and it can be said
to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative
sexual assault was committed on a girl child aged four years (below 12 years) the same can be said to
be ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act. Therefore,
both, the Trial Court as well as the High Court have rightly convicted the accused for the offences
under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.
y As per the amended Section 6 with effect from 16-08-2019, the minimum punishment provided is
20 years and which may extend to imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall also be liable to fine, or with death.
y The order passed by the High Court and the learned Special Court convicting the accused for the
offences punishable under Sections 376(2)(i) of IPC and Section 5 of the POCSO Act and imposing
the punishment under Section 6 of the POCSO Act is hereby upheld.
—————
X (Minor) versus State of Jharkhand, 2022 LiveLaw (SC) 194
Point/s to note: anticipatory bail; love affair; refusal to marry; Section 6.
Sexual Relationship on the Assurance Of: Love Affair
y Once, prima facie, it appears from the material before the Court that the appellant was barely 13
years of age on the date when the alleged offence took place, both the grounds, namely that “there
was a love affair” between the appellant and the second respondent as well as the alleged refusal to
marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of
the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established.
The order of the High Court granting bail has to be interfered with since the circumstances which
prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to
the provisions of Section 376 of IPC and Section 6 of POCSO.
y In the complaint of the petitioner, it was alleged that the second respondent had taken her to a
residential hotel when she was a minor and had entered into a sexual relationship on the assurance
of marrying her. The complaint further recites that the second respondent was refusing to marry her
and that he had sent certain obscene videos to her father. Earlier on 18 February 2021, the application
for anticipatory bail filed by the second respondent was rejected by the Special Judge, POCSO. On
3 April 2021, the second respondent surrendered and sought bail. On 24 May 2021, the charge sheet
was submitted before the Special Judge. The application for bail was allowed by the Single Judge of
the High Court of Jharkhand stating the reason that “It appears from the statement under Section
164 CrPC as well as the averments made in the FIR that there was a love affair between the petitioner
and the informant and the case appears to have been instituted only on the point of refusal of the
petitioner to solemnise marriage with the informant.”
y The Supreme Court set aside the impugned order of the High Court and ordered the second
respondent to surrender.
—————

42 Protection of Children from Sexual Offences Act, 2012

RK Tarun versus Union of India, 2022 LiveLaw (Del) 1117
Classification of Section 12 of POCSO Act
y Whether offence punishable under Section 12 is a cognizable and non-bailable offence or a non-
cognizable and bailable offence?
y The issue that has arisen is that as Section 12 of the POCSO Act specifies for a term of imprisonment
that can extend up to three years, it falls on the cusp of legislative ambiguity that can make it either
a cognizable and non-bailable offence or a non-cognizable and bailable offence. It is this ambiguity
which has led to the birth of the instant PIL.
y Section 12 of the POCSO stipulates that whoever commits sexual harassment upon a child shall be
punished with imprisonment which may extend to three years. A perusal of Part II of Schedule I of the
CrPC enumerates that if an offence is punishable with imprisonment for three years and upwards,
but not more than seven years, then it will be a cognizable and non-bailable offence and shall be
triable by a Magistrate of the first class (second category). However, if an offence is punishable with
imprisonment for less than three years or with fine only, then it will be a non-cognizable and bailable
offence that shall be tried by any Magistrate (third category).
y Section 12 of the POCSO Act will also fall within the scope of the second category of Part II of
Schedule I of the CrPC.
—————
XXXXX versus State of Kerala, 2022 LiveLaw (Ker) 614
Point/s to note: Section 21; bailable offence or non-bailable offence; classification of section.
Classification of Section 21 of POCSO Act
y Whether Section 21 of the Protection of Children from Sexual Offences Act, 2012 bailable or non-
bailable?
y There is no doubt that the offence under Section 21 of the POCSO Act, which deals with failure to
report the offence against a child, is a serious offence. However, the question whether the offence is
bailable or non-bailable is not determined merely by the seriousness of the crime but by reference
to the statutory provisions.
y Section 21 of the POCSO Act makes contravention of Section 19 and Section 20 of the Act to be
punishable. A perusal of the provisions of the POCSO Act reveals that the statute does not, by itself,
declare Section 21 to be a non-bailable offence. As mentioned earlier, when there is no reference in
the statute treating a particular offence as bailable or nonbailable, reliance must be placed on the
Schedule to the CrPC. A reading of the Schedule to CrPC extracted above evidences that if, under
other laws, the offence is punishable with imprisonment for less than three years or with fine only,
the offence is bailable and non-cognizable. It is thus evident that Section 21 of the POCSO Act, which
provides for a punishment of six months or a maximum of one year, is a bailable offence.
y It is also elementary that an application for anticipatory bail is not maintainable when the offence is
bailable. In cases where the offence alleged is only bailable, bail is a right, and it cannot be denied.
In such circumstances, application for anticipatory bail is not maintainable as an accused, if arrested
for a bailable offence, the investigating officer has to mandatorily release him on bail.
—————

Protection of Children from Sexual Offences Act, 2012 43

 Practice Questions
1. Discuss the provisions relating to recording 4. Who is a ‘child’ in the Protection of Children
of statement of a child by police and a from Sexual Offences Act, 2012? Discuss
Magistrate under the Protection of Children the provisions relating to aggravated sexual
from Sexual Offences Act, 2012. [Rajasthan assault given in the Act. [Rajasthan Judicial
Judicial Services Mains Examination, 2017] Services Mains Examination, 2015]
2. What is the definition of ‘sexual harassment’, 5. What is the procedure under Section 24
under the Protection of Children from Sexual of the Protection of Children from Sexual
Offences Act, 2012? [Rajasthan Judicial Offences Act, 2012 for recording of statement
Services Mains Examination, 2017] of a child? [Rajasthan Judicial Services Mains
3. Discuss the provisions relating to procedures Examination, 2013]
for recording of statement of a child and 6. What does the term ‘share household’
medical examination of a child under the means under the Protection of Children
Protection of Children from Sexual Offences from Sexual Offences Act, 2012? [Rajasthan
Act, 2012. [Rajasthan Judicial Services Mains Judicial Services Mains Examination, 2013]
Examination, 2016]

Solved Question

Q. What is the definition of ‘sexual harassment’, under the Protection of Children from Sexual Offences
Act, 2012?

Ans.

Sexual Harassment
Under section 2(j) of the Protection of Children from Sexual Offences Act, 2012, it is said that ‘sexual
harassment’ has the same meaning as assigned to it in Section 11. Section 11 covers six situations
which constitute an offence of sexual harassment.
Section 11 of the POCSO Act declares the acts to be held as the sexual harassment. Section 11 of the
POCSO Act catalogues the following acts: a person is said to commit sexual harassment upon a child
when such person with sexual intent:
1. utters any word or makes any sound, or makes any gesture or exhibits any object or part of body
with the intention that such word or sound shall be heard, or such gesture or object or part of body
shall be seen by the child; or
2. makes a child exhibit his/her body or any part of his body so as it is seen by such person or any
other person; or
3. shows any object to a child in any form or media for pornographic purposes; or
4. repeatedly or constantly follows or watches or contacts a child either directly or through electronic,
digital or any other means; or
5. threatens to use, in any form of media, a real or fabricated depiction through electronic, film or
digital or any other mode, of any part of the body of the child or the involvement of the child in a
sexual act; or
6. entices a child for pornographic purposes or gives gratification therefor.
Explanation to Section 11 states that, any question which involves “sexual intent” shall be a question
of fact.

44 Protection of Children from Sexual Offences Act, 2012

Sexual Intent
‘Sexual intent’ is a necessary ingredient of ‘sexual harassment’ under Section 11. The phrases ‘sexual
intent’, ‘touches’ and ‘physical contact’ have not been defined in the POCSO Act, however the explanation
to Section 11 states that any question which involves ‘sexual intent’ shall be a question of fact. ‘Sexual
intent’ is not defined in the Act. The circumstances in which touch or physical contact occurs would be
determinative of whether it is motivated by ‘sexual intent’. There could be a good explanation for such
physical contact which include the nature of the relationship between the child and the offender, the
length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the
contact. Also relevant is where it takes place and the conduct of the offender before and after such
contact.

Protection of Children from Sexual Offences Act, 2012 45