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POCSO Act

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

November 10, 2024

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This article was written by Ritika Sharma and further updated by Samiksha Singh. The article comprehensively deals with the Protection of Children from Sexual Offences Act, 2012. In addition to dealing with the provisions of the Act, the article also analyses how the courts have interpreted the same. The POCSO (Amendment) Act, 2019 and the POCSO Rules, 2020 have also been discussed.

Table of Contents

Introduction

The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as to as the POCSO Act) was introduced with the view of combating all forms of sexual abuse against children. Despite the fact that the United Nations adopted the Convention on the Rights of the Child way back in 1989, the first legislation to comprehensively address the offences against children in India, only came by way of the POCSO Act in the year 2012. However, given the surge in the cases of child sexual abuse, the POCSO Act not only seeks to comprehensively deal with the protection of children against sexual abuse, but also aims to ensure their well-being by making the entire trial process child-friendly.

In accordance with Article 15(3) of the Constitution of India, the Parliament is empowered to make special laws in the interest of children and women. For this reason, the POCSO Act was enacted, in order to address the concerns regarding all forms of sexual abuse against children. In addition to defining various forms of sexual abuse against children and prescribing punishments for the same, the POCSO Act also aims to protect the privacy of the child and maintain confidentiality during every stage of the judicial proceeding. The legislation also incorporates child-friendly mechanisms for reporting, investigation and trial, in order to ensure speedy trial of the offences.

Following is a comprehensive discussion of the POCSO Act wherein the article initially discusses about the need, scope, applicability and importance of this special legislation and thereafter delves into the offences it deals with, their trial procedure, and shortcomings of this Act. Towards the end the article also discusses in brief about the 2019 amendment in the POCSO Act along with POCSO Rules, 2020.

Need for the POCSO Act, 2012

Prior to the coming into effect of the POCSO Act, the only legislation which sort of dealt with the rights of a child, was the Goa’s Children’s Act, 2003 and Rules, 2004. In so far as the Indian Penal Code, 1860 (now replaced with Bharatiya Nyay Sanhita, 2023) (hereinafter referred to as the IPC) is concerned, there was no separate provision which dealt with offences against children. Such offences, thus, were generally dealt with under Section 375 (Rape. Now, Section 63 of the Bharatiya Nyaya Sanhita, 2023), Section 354 (Assault or criminal force to woman with the intent to outrage her modesty, now, Section 74 of the Bharatiya Nyaya Sanhita, 2023) and Section 377 (Unnatural offences. Now, decriminalised) of the IPC. However, these provisions of the IPC had their own shortcomings. Firstly, they failed to protect and safeguard the interests of male children. In addition to this, terms such as “unnatural offence” or “modesty” were not explicitly defined. In light of such issues with respect to the IPC and the absence of a specific legislation dealing purely with offences against children, it was paramount for the legislators to come up with a separate statute for this purpose. For this reason, the POCSO Act was introduced in the year 2012 (enforced on 14.11.2012).

In the case of Alakh Alok Srivastava vs. Union of India (2018), the Supreme Court examined the object of the POCSO Act. In doing so, the Supreme Court observed that the State is obligated to ensure that the trial is properly conducted and the interests of the child are secured. This is a result of the primary purpose of this Act, which is to ensure that the development of children is not compromised and that they are protected against all forms of sexual assault. The aim of the POCSO Act is to ensure the best interests of a child at all times. For this reason, the Supreme Court in the case of Sampurna Behura vs. Union of India (2018), by virtue of an order dated 02.08.2018, restrained electronic media from publishing/broadcasting the images of minor girls, even if the same is morphed/blurred.

Scope of the POCSO Act, 2012

Although the POCSO Act is a separate, self-contained legislation, dealing with offences against children, it cannot be construed as a complete code in itself. Various laws such as Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier the Code of Criminal Procedure, 1973), Bharatiya Nyaya Sanhita, 2023 (earlier IPC, 1860) Juvenile Justice Act, 2015, and Information Technology Act, 2000 often overlap and/or supplement the provisions of the POCSO Act. However, if there is any inconsistency between any other law and the provisions of the POCSO Act, then in accordance with Section 42-A of the POCSO Act, its provisions will prevail.

Applicability of the POCSO Act, 2012

The POCSO Act comprises of 46 sections. While the law itself was published in the official gazette on 20.06.2012, it was only enforced on 14.11.2012. Thus, a question of whether the provisions of the POCSO Act was applicable to cases prior to the date of its enforcement, might arise. This question was, however, subsequently answered through a few cases.

This issue arose in the case of Kanha vs. State of Maharashtra (2017), wherein the accused was convicted under Section 376 of the IPC, 1860 (punishment for rape. Now provided under Sections 64, 65 of the BNS, 2023) and Section 6 of the POCSO Act, for having committed aggravated penetrative sexual assault upon the victim, which resulted in her pregnancy. The contention of the appellant, before the Bombay High Court, was that unless the age of the foetus can be established, the date of offence not being in proximity with 14.11.2012, the accused cannot be prosecuted and sentenced under the POCSO Act, 2012. The accused, subsequently, was acquitted of all charges.

Thus, offenders committing an offence after 14.11.2012 only, would be punished under the POCSO Act. This Act does not have a retrospective application. This was further reiterated by the Supreme Court in the case of State of Telangana vs. Polepaka Praveen @ Pawan (2020). In this case, the State had filed a special leave petition, seeking the death penalty for the convict. Herein, it was argued that the death penalty as a form of punishment, was brought into effect from 06.08.2019, and the offence itself was committed on 18.06.2019/19.06.2019. It was further argued that the death penalty should be imposed keeping in mind the intent of the legislature while enacting the Act. However, while rejecting the argument, the Supreme Court noted that when the punishment itself was to operate prospectively, there is no reason why it should be made applicable retrospectively. It was further observed that being in incarceration till one’s last breath, is sufficient punishment to send a message to society.

Importance of the POCSO Act, 2012

The primary reason for the enactment of the POCSO Act, was to combat the surge in cases of sexual abuse against children. This Act, thus, comprehensively defines and penalises all forms of sexual abuse/assault against children.
While defining and penalising various forms of sexual offences against children, the POCSO Act also penalises aggravated forms of sexual assaults, where such offences are carried out by persons in position of trust and authority. Furthermore, it also provides a robust mechanism for instances wherein such incidents take place in schools, parks, hospitals, religious/educational institutions and the like.
In addition to defining and punishing various forms of sexual offences, the POCSO Act also provides for mandatory reporting of such offences. Often, such incidents of sexual offences against children go unreported. The POCSO Act makes it mandatory for such persons who have knowledge of the commission of the offence, to report it to the appropriate authority. Non-reporting of such incidents is a punishable offence under the Act.

Salient features of the POCSO Act, 2012

The prominent features of the POCSO Act are as follows:

Need to maintain confidentiality: In instances of such grave offences, the need to maintain confidentiality with regard to the child victim’s identity, becomes paramount. The essence of maintaining confidentiality, thus, is an important feature of the POCSO Act. For this reason, Section 23 of the POCSO Act imposes restrictions and lays down the duties of the media in maintaining confidentiality of the identity of the victim. Section 23(2) mandates that any report published in any form of media, should not disclose the identity of the child. These include the name, photograph, family detail or any other aspect which might lead to the disclosure of the identity of the child. Furthermore, in the case of Nipun Saxena vs. Union of India (2018), the Supreme Court reiterated the restrictions on media and the need to protect and maintain the privacy and confidentiality of the victim. The Supreme Court, while citing the intention of the legislature, observed that the media cannot divulge any material which has the effect of disclosing the identity of the victim. If there is any contravention by the media in this regard, the same would be punishable in accordance with Section 23(4) of the POCSO Act. As per the observations of the Calcutta High Court in the case of Bijoy @ Guddu Das vs. The State of West Bengal (2017), even a police officer, if found to have committed such a breach, shall be prosecuted.
Gender-neutral approach: One of the most significant features of the POCSO Act, is that it is not gender specific. The Act does not distinguish between male and female victims or offenders. This is a significant step forward, when considered in the light of the provisions of the IPC, 1860. Thus, as observed by the Supreme Court in the case of Nipun Saxena vs. Union of India (2018), POCSO would apply to all children regardless of their gender.
Mandatory reporting: Under the POCSO Act, it is mandatory for anybody having knowledge or apprehension of commission of an offence under the Act, to report such instances. The same has been provided under Sections 19, 20, 21, 22 and 23 of the POCSO Act.

The Supreme Court in the case of State of Gujarat vs. Anirudh singh and Another (1997), had made an observation regarding the role of citizens in the investigation of cognizable offences. In doing so, it was observed that every citizen is duty-bound to inform the police if they have knowledge of commission of any cognisable offence. It was further observed that the citizens must cooperate with the investigating agencies. Often, there are instances wherein the school authorities and the teachers, help in reporting the commission of any sexual assault against any student. One such instance can be found in the case of Nar Bahadur vs. State of Sikkim (2016). In this case, the teachers received information that a student was being assaulted repeatedly by an elderly accused, which had led to her pregnancy. Herein, the teachers informed about the same, to the panchayat, who lodged an FIR in the police station.

In the landmark case of Shankar Kisanrao Khade vs. State of Maharashtra (2013), the Supreme Court laid down guidelines regarding reporting an offence. In this case, an 11-year old child, suffering from a moderate intellectual disability, was raped. However, this instance was not reported, either to the police or to the juvenile justice board. It was observed by the Supreme Court, that children suffering from an intellectual disability are more vulnerable to any form of abuse. For this reason, the institutions which house such children, must make sure to report instances of sexual assault against them. Non-reporting of sexual offences against children is a crime under the POCSO Act.

Conduction of child-friendly trials: One of the most commendable features of the POCSO Act, is that it incorporates child-friendly mechanisms for the purposes of investigation and the conduction of trials. In the case of Sampurna Behura vs. Union of India (2018), the Supreme Court observed that the trial of offences under the POCSO Act, must be carried out with a higher degree of care and empathy for the victim. In fact, the Supreme Court observed that courts must be compassionate, not just towards the victim, but also towards juveniles who are in conflict with the law. The reason for this being that even such juveniles who are in conflict with the law, must be afforded the presumption of innocence. In doing so, the Supreme Court noted the importance of establishing child-friendly courts in the delivery of justice and in responding to the pain and suffering of the children.

General principles of the POCSO Act, 2012

The general principles of the POCSO Act are as follows:

The child has a right to be treated with dignity.
In accordance with Article 21 of the Constitution of India, the child has a right to life and must be safeguarded against such instances of abuse.
There should be no discrimination on the grounds of gender. For this reason, the provisions of the POCSO Act are made gender-neutral.
The privacy and confidentiality of the child must be maintained at all stages of the proceedings.

Overview of the POCSO Act, 2012

Sexual offences against children under the POCSO Act, 2012

Chapter II of the POCSO Act, comprising Sections 3–12, prescribes 5 different types of sexual offences against children and punishments for the same.

Penetrative sexual assault

The definition of penetrative sexual assault is provided under Section 3 of the POCSO Act. Accordingly, if any person commits any of the following acts, he would be guilty under Section 3 of the POCSO Act:

Either such person himself penetrates his penis into the child’s vagina, mouth, urethra, anus; or rather than committing such an act himself, makes the child perform such acts with that person or some other person; or
Either such person himself inserts any object or any other part of the body (which is not his penis) into the child’s vagina, urethra, anus; or rather than committing such an act himself, makes the child perform such acts with that person or some other person; or
Such a person, either himself manipulates any part of the body of such child, that results in penetration in the child’s vagina, urethra, anus, any other part of the body; or such person makes the child perform such acts with him or some other person; or
Such a person uses and applies his mouth to the child’s penis, vagina, anus, urethra; or makes the child perform such acts on him or some other person.

The punishment for committing penetrative sexual assault within the meaning of Section 3 of the POCSO Act, is provided under Section 4– imprisonment for a period not less than 10 years, extendable to imprisonment for life, and a fine; if the child is below 16 years of age, imprisonment for a period not less than 20 years, extendable to imprisonment for life, and a fine.

In the case of the State of Maharashtra vs. Bandu (2017), a person was convicted under Sections 4 and 6 of the POCSO Act, along with some provisions under the IPC, 1860 for having committed penetrative sexual assault on a physically and mentally challenged 10-year-old girl. In the case of Pranil Gupta vs. State of Sikkim (2015), the Sikkim High Court, while upholding the conviction of the appellant, noted that even though the victim had gone to the room of the appellant of her own free will, given that her age was 15 years, the appellant was liable to be convicted under Section 4 of the POCSO Act, 2012.

In a recent judgement of the Delhi High Court in Shantanu vs. The State (2023), it was observed that the mere and simple act of touching, cannot amount to ‘manipulating’ for the purposes of Section 3(c) of the POCSO Act. The act of ‘touch’ is made a separate offence under Section 7. According to the Delhi High Court, if a mere act of touch would amount to ‘manipulation’, thereby attracting Section 3 of the POCSO Act, then the whole purpose of incorporating a separate provision under Section 7 would be rendered redundant.

Aggravated penetrative sexual assault

Section 5 of the POCSO Act provides a list of circumstances regarding when penetrative sexual assault within the meaning of Section 3, would amount to aggravated penetrative sexual assault. Accordingly, if the offence of penetrative sexual assault is committed by any of the following persons or by virtue of any of the following acts, then the offence of aggravated penetrative sexual assault within the meaning of Section 5 of the POCSO Act would be committed:

Police officer: whether within the police station, premises of any station house, course of his duties, or at any other place where he is construed and known to be a police officer; or
Member of armed or security force: whether within the area where such person is deployed, any area that is in command, course of duties, or at any other place where he is construed to be a member of armed/security forces; or
Public servant; or
Management/staff of jail, remand/protection/observation home or any place of care established by law: if any such person commits penetrative sexual assault at any place of care and protection; or
Management/staff of hospital; or
Management/staff of educational/religious institution; or
Gang penetrative sexual assault: whoever in pursuance of common intention commits gang penetrative sexual assault, each of such persons would be liable; or
Usage of deadly weapons: any person who commits penetrative sexual assault by means of any deadly weapon, fire, heated/corrosive substance; or
Causing grievous hurt/bodily harm: any person who commits penetrative sexual assault, which results in grievous/bodily hurt or injury to the child’s sexual organs; or
Penetrative sexual assault resulting in:

physical incapacitation of the child;
mental illness;
impairment of any kind whether temporary or permanent;
Pregnancy, in case of female child;
Any life threatening disease/infection including Human Immunodeficiency Virus (HIV) that permanently or temporarily impairs the child;
Child’s death; or

Act of taking advantage of mental/physical disability: any person who takes advantage of such disability of the child and commits penetrative sexual assault; or
Committing such offence more than once: If penetrative sexual assault is committed either more than once or is committed repeatedly; or
Age of child below 12 years; or
Relative of the child: any person who is the child’s relative through blood/adoption/marriage/guardianship/foster care/having domestic relation with the child’s parent/living in the same household; or
Management of any institution: If any person who is in ownership/staff of any institution that provides services to the child and commits the offence; or
Person being in position of trust: anyone being in position of trust/authority in an institution/home/any other place and commits such offence; or
When the child is pregnant: if any person commits the act of penetrative sexual assault on a pregnant child when such person has knowledge that the child is pregnant; or
Attempt to murder: any person who commits the act of penetrative sexual assault and subsequently attempts to murder such child; or
Commission of penetrative sexual assault during communal/sectoral violence/natural calamity; or
Person committing penetrative sexual assault is previously convicted for commission of offence: if such person has been convicted of any offence under POCSO Act or any other sexual offence under any other law; or
Making the child strip in public: any person who commits penetrative sexual assault and subsequently makes the child strip/parade naked in public.

Section 6 of the POCSO Act prescribes the punishment for aggravated penetrative sexual assault. Thus, the punishment for any person guilty under Section 5, for the commission of aggravated penetrative sexual assault, is rigorous imprisonment for not less than 20 years, but extendable to imprisonment for life and a fine, or death. The imposition of fine herein shall be reasonable, in order to meet the medical and rehabilitation expenses of the victim.

In the case of State of U.P. vs. Sonu Kushwaha (2023), the Supreme Court examined the meaning of the term “shall not be less than.” In doing so, the Court observed that when any penal provision uses such a phrase, the courts cannot impose a lesser sentence than what has been prescribed under such provision. The court is empowered to do so only when any provision itself enables the court to impose a lesser sentence. In that light, none of the provisions of the POCSO Act enable the court to impose a lesser sentence other than what has been prescribed.

Sexual assault

The definition of “sexual assault” is provided under Section 7 of the POCSO Act. Accordingly, if any person, with a “sexual intent” does any of the following acts:

“Touches” the child’s vagina, penis, anus, breast; or
“Makes the child” touch either such person’s or any other person’s vagina, penis, anus, breast; or
Any other form of physical contact with sexual intent which does not involve penetration;

Then such person is guilty of sexual assault within the meaning of Section 7 of the POCSO Act, 2012.

In the case of Subhankar Sarkar vs. State of West Bengal (2015), it was observed that while the evidence on record did not indicate the commission of the offence of penetrative sexual assault, the evidence in the form of scratch marks on the victim’s body, was indicative of use of force. For this reason, the accused was convicted under Sections 8 and 12 of the POCSO Act.

In a recent and landmark ruling of the Supreme Court in Attorney General for India vs. Satish (2021), the terms “touches/touch” and “physical contact” employed under Section 7 of the POCSO Act, were interpreted. In this case, the convict was acquitted by the High Court, under Section 8 and convicted of minor offences under Sections 354 (now, Section 74 of the BNS, 2023) and 342 of the IPC, 1860 (punishment for wrongful confinement. Now, Section 127 of the BNS, 2023). In this case, the accused had removed the victim’s top and pressed her breast. The High Court’s acquittal was based on an interpretation that there was no “direct physical contact” or “skin-to-skin” contact with sexual intent so as to attract Section 7 of the POCSO Act. The accused was, therefore, convicted under Sections 342 and 354 of the IPC, 1860.

The Supreme Court observed that for there to be an offence under Section 7 of the POCSO Act, what is important is the “sexual intent” of the person and not a “skin-to-skin contact.” It was observed that none of the provisions of the POCSO Act provide that unimpeded “direct physical contact” without any clothing is necessary for the commission of any offence. Therefore, any contact, whether direct or indirect, committed with a sexual intent, would fall under the ambit of Section 7 of the POCSO Act. The prohibition herein, is on the guilty behaviour propelled by sexual intent, and not on the nature (direct/indirect) of touch. Thus, an offence under Section 7 can be committed even in cases where there is no “skin-to-skin” contact.

The punishment for sexual assault, as provided under Section 8 of the POCSO Act, is imprisonment for not less than 3 years, extendable to 5 years and a fine.

Aggravated sexual assault

Section 9 of the POCSO Act provides a list of circumstances as to when ‘sexual assault’ within the meaning of Section 7 would amount to aggravated sexual assault. Accordingly, if the offence of sexual assault is committed by any of the following persons or by virtue of any of the following acts, it would amount to aggravated sexual assault:

Police officer; or
Member of armed/security forces; or
Public Servant; or
Management/Staff of jail or remand/protection/observation home or any other place of care or custody; or
Management/staff of hospital (either Government or private); or
Management/staff of educational/religious institution; or
Gang sexual assault;
Sexual assault by means of deadly weapons/fire/heated substance/corrosive substance; or
Sexual assault resulting in grievous hurt/bodily harm/injury to child’s sexual organs; or
Sexual assault resulting in:

Child’s physical incapacitation;
Mental illness;
Impairment whether permanent or temporary;
Any life threatening disease/ infection including HIV which either temporarily or permanently impairs the child;

Sexual Assault by taking advantage of physical/mental disability of the child; or
Commission of sexual assault more than once or repeatedly; or
Commission of sexual assault on a child below 12 years; or
Commission of sexual assault by the relative of the child; or
Commission of sexual assault by someone in ownership/management of institution providing certain services to such child; or
Commission of sexual assault by a person in position of trust/authority; or
Commission of sexual assault on a pregnant child with the knowledge that such child is pregnant; or
Commission of sexual assault and subsequent attempt to murder; or
Commission of sexual assault during communal/sectarian violence/natural calamity or the like; or
Sexual assault by any person previously convicted under POCSO Act, 2012 or any other law for any sexual offence; or
Sexual assault and making the child strip/parade naked; or
By virtue of the 2019 amendment, any one who persuades/induces/coerces/entices the child to take any type of drug, intending that such child reach early sexual maturity would also be guilty of aggravated sexual assault.

The punishment for aggravated sexual assault under Section 10 of the POCSO Act, is imprisonment for not less than 5 years, extendable to 7 years and a fine.

In the case of Sofyan vs. State (2017), the accused was convicted under Section 354 of the IPC, 1860 (now, Section 74 of the BNS, 2023) and Section 10 of the POCSO Act. Herein, the victim was an eight year old girl. It was stated that while she was in the changing room area and was wearing her swimming costume, the accused, who was a plant operator in the swimming pool area, approached the girl and inserted his hand in the victim’s swimming costume. Given that the accused touched her with sexual intent, he was convicted by the Trial Court for committing the aforementioned offences. The accused’s appeal before the Delhi High Court was dismissed and the conviction was upheld.

Sexual harassment

In accordance with Section 11 of the POCSO Act, if any person with sexual intent commits any of the following acts:

Utters some word or makes some sound/gesture or exhibits some object/part of body intending that such acts be seen/heard by the child; or
Makes the child exhibit either his body/part of his body so as to be seen by such person or some other person; or
For pornographic purposes shows any object to the child; or
Repeatedly either watches or contacts such child (be it directly/through electronic form); or
Threatens to use a real or fabricated part of such child’s body or such child’s involvement in any sexual act and depict it through any mode; or
Either entices such child for any pornographic purpose or such person provides some gratification;

If any of the above stated acts are committed by any person, then such person shall be guilty of committing sexual harassment within the meaning of Section 11 of the POCSO Act, 2012. Any person committing the offence of sexual harassment, shall, in accordance with Section 12, be liable and sentenced to imprisonment extendable to 3 years and fine.

Pornography under POCSO Act, 2012

Sections 13–15 of the POCSO Act, lays down the offence of using a child for the purposes of pornography and punishment for the same. In accordance with Section 13 of the Act, if any person in any media ‘uses’ a child in order to gain sexual gratification, be it in the form of:

Representing the child’s sexual organs;
Using such child in any form of sexual act, which may either be ‘real’ or ‘simulated’ (herein, such usage of child in such sexual act, may be with or without penetration);
Such child is represented in an indecent/obscene manner;

Then, such person shall be guilty under Section 13 of the POCSO Act, for using the child for pornographic purposes.

Section 14 of the POCSO Act, 2012 prescribes the punishment for usage of a child in pornography. In accordance with Section 14(1), any person who uses a child for pornography shall attract:

First conviction: Imprisonment for not less than 5 years and a fine
Second/subsequent conviction: Imprisonment for not less than 7 years and a fine

Further, according to Section 14(2), if any person while using such child for pornography, also commits any offence referred to under Sections 3, 5, 7 or 9, by means of direct participation in the pornographic act, then he shall be punished under:

Section 4 or 6 or 8 or 10 (depending upon what form of sexual offence he commits in the pornographic act), along with punishment under Section 14(1).

Section 15 of the POCSO Act provides the punishment for storing any form of pornographic material which involves a child. Accordingly,

Storing/possessing such material and not deleting/destroying/reporting with an intention to share/transmit, would attract:

First conviction: Minimum fine of Rs. 5000/-
Second/subsequent conviction: Minimum fine of Rs. 10,000/-

Storing/possessing such material for transmitting/propagating/displaying/distributing except for reporting/using as evidence, would face imprisonment which is extendable to 3 years or a fine or both.
Storing/possessing such material for commercial purpose:

First conviction: Imprisonment not less than 3 years, extendable to 5 years or a fine or both
Second/subsequent conviction: Imprisonment for not less than 5 years, extendable to 7 years and a fine

Abetment of offence under the POCSO Act, 2012

Section 16 of the POCSO Act lays down the provision for the abetment of offence. In accordance with Section 16, the following acts would be construed to be an abetment of offence:

Instigation;
Engaging in any conspiracy to commit the offence, wherein such conspiracy leads to the commission of an act/illegal omission so as to commit the offence;
Intentional aiding by any act or illegal omission.

The punishment for abetment is specified under Section 17 of the POCSO Act, according to which, any person who abets any offence under the Act, and consequently if such an offence is then committed, the person who abetted the same would be subject to the punishment specified for that offence.

For example, if a person A abets in the commission of an offence under Section 3 of the POCSO Act, and because of A’s abetment, the offence is committed, then A would attract Section 4, which lays down the punishment for an offence under Section 3.

Attempt to commit offence under the POCSO Act, 2012

Section 18 of the POCSO Act endeavours to lay down the punishment for any attempt to commit an offence. Thus, as per the POCSO Act, attempting to commit any offence is also punishable. Under Section 18, if any person does any of the following acts, he shall be liable for attempting to commit an offence.

Attempts to commit any offence under the POCSO Act, 2012; or
Causes that such offence be committed and in doing so, such person does anything towards the commission of the offence.

Any person who does either of the acts, then in accordance with Section 18, such person shall be punished with an imprisonment of such description as is prescribed for that offence. Such term of imprisonment is extendable to either:

one-half of imprisonment for life or a fine or both; or
one-half of the longest term of imprisonment for that offence or a fine or both.

Trial of offences under the POCSO Act, 2012

The procedure for the conduction of trial under the POCSO Act, is as follows:

Reporting of offences

Section 19 of the POCSO lays down the provision for reporting of offences. In accordance with Section 19, any person having apprehension of the commission of offence or having knowledge that an offence punishable under POCSO has already been committed, then such person has to provide the information either to the local police or the Special Juvenile Police Unit. For the purpose of this section, “any person” includes a child.

Section 20 of the POCSO goes on to cast an obligation on media/ hotel/ lodge/ club/ photographic facilities, irrespective of the name with which they are referred or whatever number of persons employed to provide information to Special Juvenile Police Unit or local police whenever they come across any material that is sexually exploitative of a child.

Section 21 of the POCSO Act casts an obligation on every citizen to report cases of sexual assault against children to the Juvenile Justice Board or the local police. In accordance with Section 21 of the POCSO, non-reporting of cases of sexual assault against children is a punishable offence. However, the same provision is not applicable to a child.

Procedure for recording statement

The aim of the POCSO Act is to make the process of investigation and trial child-friendly and in a manner to safeguard the interests of a child. Accordingly, Section 24 of the POCSO provides that:

The statement of the child would be recorded either at the residence of such child or wherever he chooses, and if possible, by a woman police officer who is not below the rank of a sub-inspector.
Such police officer should not be in uniform when recording the statement of such child;
It is for the police officer to ensure that such child, during the process of examination, does not come in contact with the accused in any manner;
Regardless of the reason, no child is to be detained at the police station at night;
The police officer is also obligated to ensure that the identity of the child is protected from the media.

Further, Section 25 of the POCSO provides that when the statement of the child is being recorded under Section 164 of the CrPC (now Section 183 of BNSS, 2023), the Magistrate is to record the statement of such child as spoken by him.

Section 26 of the POCSO lays down additional guidelines for recording the statement of the child. These are:

The police officer or the Magistrate recording the statement of the child shall do so either in the presence of the parents of such child or in the presence of any other person whom the child trusts;
If required, the Magistrate or the police officer may take assistance of any translator or interpreter;
If the child is suffering from any physical or mental disability, the Magistrate or the police officer may take assistance from any special educator or expert for the purpose of recording the statement of the child;
If possible, the police officer or Magistrate is to ensure that the statement of the child is recorded by electronic means also.

Deposition of the victim

Section 33 of the POCSO Act, lays down the power and procedure of the Special Court. In accordance with Section 33, the Special Court has the power to take cognizance of an offence, on the basis of a complaint or upon receiving a police report of such facts. It is not necessary that the accused be committed to a trial for the Special Court to take cognizance. Section 33 lays down various mechanisms to ensure that the deposition of the victim is child-friendly. In that light, the Special Court may:

Allow breaks during the conduction of the trial;
Create a child-friendly surrounding;
Ensure that such child is not repeatedly called to testify;
Disallow questions that are aggressive in nature or that results in character assassination of the child;
Ensure that the identity of the child is maintained.

In the case of Sampurna Behura vs. Union of India (2018), the Supreme Court observed the need to conduct trials under the POCSO Act, with a heightened degree of sensitivity and treat the child with compassion. In doing so, the Supreme Court directed the High Courts to establish child-friendly courts.

Section 36 of the POCSO Act, further provides that the child should not be exposed to the accused, while testifying. However, in the case of Vasudev vs. The State of Karnataka (2018), this procedure was not followed. In this case, the deposition sheet provided that the victim was aggressively questioned. Further, the accused was only sent out when the victim was overwhelmed with emotions while narrating the incident. The accused was convicted under Section 4 of the POCSO Act, and his appeal before the Karnataka High Court was dismissed.

In another case of Nar Bahadur Subba vs. State of Sikkim (2016), the teachers of the victim stated that they were unaware of the character of the victim. The Sikkim High Court observed that the character of a 11-year old must not be analysed and that character assassination of the victim is a violation of Section 33 of the POCSO Act, 2012.

The time limit for disposal of cases

One of the aims of the POCSO Act, is to ensure that the trials are conducted expeditiously. For this reason, Section 35 of the POCSO Act stipulates:

Evidence be recorded within 30 days of cognizance of offence;
Trial be complete within 1 year of the date of cognizance of offence.

In the case of Shubham Vilas Tayade vs. The State of Maharashtra (2018), the Special Court allowed the prosecution to record evidence after 30 days of taking cognizance. When the same was challenged by the accused, the Bombay High Court observed that the Special Court may record evidence even after the expiry of 30 days. However, as per Section 35, the reasons for such delay must be recorded.

Medical and forensic evidence

In instances of child sexual abuse, the diagnosis of the victim is generally not taken on the basis of physical examination. This is because there is generally a significant delay in the reporting of such cases. This delay in reporting, often results in no mark/injury being found on the body of the victim.

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

The victim refused her internal medical examination when she was brought to the hospital.
The victim had claimed pregnancy on account of the physical relationship with the accused. However, as per the medical reports, the victim’s menstrual cycle was found to be regular.
There was no external injury on the body of the victim.

Admissibility of the medical history of the victim

Generally, the victim’s medical history is not given much consideration while determining whether sexual assault has taken place. In the case of Gangadhar Sethy vs. State of Orissa (2015), there was an absence of any physical injury on the body of the victim. However, the doctor took into consideration the medical history of the victim and observed that the possibility of there being a sexual assault cannot be ruled out. However, the same was not considered by the Orissa High Court.

Medical examination

Rule 6 of the POCSO Rules, 2020, lays down the provision for emergency medical care. If on receiving information that an offence has been committed, and that such child requires urgent medical care, the local police shall take the child to the nearest hospital within 24 hours of the information. In accordance with Section 27 of the POCSO Act, the medical examination of a child has to be carried out in the following manner:

In consonance with Section 164-A of the CrPC (now, Section 184 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
If the victim is a girl, then such examination has to be carried out by a female doctor;
Such examination must be in the presence of a parent of the victim/any other person whom the child trusts;
In the event that a parent or any other person is not available, then the medical examination has to be in the presence of a woman who is nominated by the head of the medical institution.

Special courts under the POCSO Act, 2012

Section 28 of the POCSO Act, provides for the designation of a Special Court to try offences under this Act. The aim of the designation of Special Courts is to ensure speedy disposal of cases. For this reason, the State Government, in consultation with the Chief Justice of the High Court, shall designate a Special Court for each district by virtue of a notification in the Official Gazette.

Presumptions under the POCSO Act, 2012

For the purposes of certain offences under Sections 3, 5, 7 and 9 of the POCSO Act, Section 29 creates a presumption that any person who commits, abets or attempts to commit such offences, has done so, unless it is proved otherwise.

Furthermore, as per Section 30 of the POCSO Act, with respect to any offence which requires that the accused have a “culpable mental state”, the same will be presumed. It is for the accused to establish that there existed no such mental state. The standard of proof under this Section is very high. It would not suffice for the accused to show that by virtue of a preponderance of probability, he did not possess the mental state. The accused has to prove beyond reasonable doubt that no such mental state existed.

In Imran Shamim Khan vs. State of Maharashtra (2019), a child told her grandmother that she was sexually abused and her medical examination confirmed this. Her mother had asked her to ignore the same. However, the statements of the child victim and her grandmother were recorded before the Magistrate. In that regard, an important observation was made by the Bombay High Court. It was noted that in cases of sexual assault against a minor, the fact that the minor turns hostile is of little relevance while ascertaining the innocence/guilt of the accused. The onus is still on the accused to establish his innocence. The accused in such cases, cannot argue that the prosecution has failed to make a case of sexual assault. It is for the accused to prove that he is innocent or that he is being falsely implicated.

Shortcomings of the POCSO Act, 2012

While the POCSO Act is a welcome step in penalising instances of sexual assault against children, it has certain loopholes and shortcomings. These are:

Applicability of the “last seen theory”: While the last seen theory is used in determining the guilt of the accused, it may also lead to instances of wrongful conviction. For this reason, this theory cannot be applied in the absence of circumstantial evidence. In the case of Anjan Kumar Sarma vs. State of Assam (2017), the Supreme Court observed that this theory cannot be relied upon single-handedly, given that it is a weak piece of evidence.
Improper Investigation: The investigating authority must be properly trained and well-acquainted with the procedures for carrying out the investigation in such cases. Lack of knowledge of the procedure and faulty investigation, may lead to the acquittal of the accused.
Instances of pending cases: Though the POCSO Act endeavours to complete the trial within one year of taking cognizance, as per Section 35(2), there is still a very high number of cases that are pending.
False complaints by children: While Section 22 of the POCSO Act punishes false complaints by persons, false complaints made by children are not punishable. This exemption may often be misused by other persons to lodge false complaints through a child.

The POCSO (Amendment) Act, 2019

The salient features of the POCSO (Amendment) Act, 2019 (hereafter referred as the 2019 Amendment) are as follows:

The 2019 Amendment provided a definition for the term “child pornography”. It defined child pornography as a visual depiction of some sexually explicit conduct that involves a child. The term has been very widely defined, to include not just any photograph or video, but also any computer generated image of the child, which represents and is not distinguishable from the child.
The 2019 Amendment provided for a separate punishment for the offence of penetrative sexual assault, if the same is committed on a child below 16 years of age. Consequently, if any person is found guilty of this offence, the term of imprisonment would be a minimum of 20 years, extendable to imprisonment for life. Here, imprisonment for life refers to imprisonment for the remaining natural life of such accused.
A very noteworthy aspect about the 2019 Amendment to the POCSO Act, is that it incorporated death penalty as a punishment for the offence of aggravated penetrative sexual assault. Accordingly, if any person is found guilty of aggravated penetrative sexual assault, he may be punished with rigorous imprisonment for a minimum term of 20 years, which is extendable to imprisonment for life, or death.
The amendment also provides that the fine payable under Section 4(1) and 6(1) of the POCSO Act, would be reasonable. Further, it would be paid to the victim to meet the medical and rehabilitation expenses.
As per the 2019 amendment, aggravated sexual assault also includes persuasion/ inducement/ enticement / coercion to a child for the purpose of administration of drug or hormone, intending that the child attain early sexual maturity.

POCSO Rules, 2020

Section 45 of the POCSO Act, 2012 confers power on the Central Government to make rules for realising the purposes of the POCSO Act. In exercise of such powers, the Central Government introduced the POCSO Rules, 2020. By virtue of Rule 13 of the POCSO Rules 2020, the previous rules, namely POCSO Rules, 2012 stands repealed. The POCSO Rules, 2020, amongst other things, introduces the provision for preparation of educational material, containing information regarding aspects of personal safety. In accordance with Rule 3 of POCSO Rules, 2020, the Central or State Government, as the case may be, shall prepare such curriculum. Rule 7 of the POCSO Rules, 2020 further introduces the provision for legal aid and assistance to the child. Additionally, POCSO Rules, 2020 introduces two Forms. These being:

Form A: Lists down the entitlements receivable by the victim child;
Form B: Provides for a checklist that is to serve as the Preliminary Assessment Report.

Briefly, the POCSO Rules 2020 provides for the following:

Rule 3 provides for the generation of awareness and capacity building. In doing so, it provides that the Central/State government shall prepare an age-appropriate curriculum to inform children about various aspects of personal safety. It also provides that the State/Central Government would take all the steps to spread awareness about all possible signs of rights and signs of abuse of children under the POCSO.
Rule 4 provides for the mechanism of providing care and protection to the child. It provides for the steps to be undertaken when any information regarding the commission of an offence is received under Section 19(1) of the POCSO Act. The local police or the Special Juvenile Police Unit upon receiving any information that offence is likely to be committed or has already been committed then an FIR must be registered. If such a child is in need of emergency medical care, then steps must be taken to ensure that access to such medical care is provided to the child.
Rule 6 lays down the provision for medical aid and care. It provides that whenever an officer of a Special Juvenile Police Unit or the local police receives any information of the commission of an offence against a child under Section 19 of the POCSO Act, then upon being satisfied that such child is in need of urgent medical care and protection, within 24 hours of receiving such information, make arrangements to take that child to the nearest hospital. The medical practitioner who is providing medical care to the child must attend to the needs of the child including treatment of bruises/ cuts, or treatment of any sexually transmitted disease.
In accordance with Rule 7, the Child Welfare Committee must make a recommendation to the District Legal Services Authority for the purpose of legal assistance.
Rule 8 of the POCSO Rules 2020 lays down the provision for providing special relief, that is, providing food, transport, clothing or other items as is required.
The POCSO Rules 2020 also provide for compensation at the interim stage. In accordance with Rule 9, the Special Court may pass an order granting interim compensation in order to provide relief and rehabilitation to the child.
In accordance with Rule 10, the Child Welfare Committee in coordination with the District Legal Service Authority, is to ensure that the amount of fine imposed by the Special Court is paid to the child.
Rule 11 of the POCSO Rules 2020 provides for reporting of pornographic material that involves a child. It provides that any person who receives any such pornographic material that involves a child, or any person who receives any information regarding such content being stored, circulated, transmitted or is likely to be transmitted/ distributed, then such person is to report the same to the Special Juvenile Police Unit or the local police.
Rule 12 of the POCSO Rules 2020 provides that the National Commission for the Protection of Child Rights or the State Commission for the Protection of Child Rights is to ensure the implementation of the provisions of the POCSO Act by monitoring the designation of Special Courts by State Governments, formulation of guidelines, implementation of modules for training police and other concerned persons etcetera.

Significant judicial pronouncements

Bijoy@Guddu Das vs. The State of West Bengal (2017)

In the case of Bijoy@Guddu Das vs. the State of West Bengal (2017), the accused was convicted of committing sexual assault. Herein, the accused was convicted under Section 7 of the POCSO Act, by the Learned Additional District & Sessions Judge, Krishnanagar. His conviction was upheld by the Calcutta High Court on appeal. His sentence was, however, modified from a rigorous imprisonment for 5 years to a rigorous imprisonment for 3 years. Additionally, the Calcutta High Court also issued some guidelines in order to safeguard the dignity of the child. These are:

The Police officer/Special Juvenile Police Unit, upon receiving a complaint, is to register the same in accordance with Section 19 of the POCSO Act, 2012. Further, such officers have to inform the child and/or parent about the right to legal aid. In case the child cannot arrange a legal representation, then the police officer must refer the child to the District Legal Service Authority (DLSA).
As soon as the FIR is registered, such police officers must forward the child for medical aid/examination as per Section 27 of the POCSO Act. Further, the police officer has to ensure that the statement of the victim is recorded. If, according to the Police Officer, such child is in need of “care and protection” as per Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 then the Police officer must forward the child to the Child Welfare Committee of that jurisdiction.
The trial of such a case shall be carried out in camera. Further, the evidence of the victim must be recorded without any unnecessary delay and in an atmosphere that is child friendly.
It must be ensured by the officer-in-charge, that the identity of the victim is maintained and not disclosed during investigation.
The Special Court must ensure that the trial is concluded expeditiously.
For the purpose of immediate relief, compensation should be awarded at the interim stage by the Special Court.

Vishnu Kumar vs. State of Chhattisgarh (2017)

In the case of Vishnu Kumar vs. State of Chhattisgarh (2017), an appeal was preferred before the Chhattisgarh High Court, against the judgement of the Additional Sessions Judge, by virtue of which, the accused was convicted under Section 376(2)(f) of the IPC, 1860 (now, Section 64 of the BNS, 2023). While deciding the appeal, the Chhattisgarh High Court made some observations with regard to Section 36 of the POCSO Act, which are as follows:

While recording the statement of the child witness, merely holding the proceeding in camera would not suffice. The Presiding Officer must ensure that the child is made to feel comfortable.
It must be ensured that the child is able to give the evidence freely.
While recording the evidence, the child must not be exposed to the accused. However, it must be ensured that the accused is placed in a position where he may hear the evidence given by the child.

Dinesh Kumar Maurya vs. State of U.P. (2016)

In this case, the accused was convicted under Section 4 of the POCSO Act. An appeal was preferred before the Allahabad High Court. While deciding the appeal, the Allahabad High Court set aside the conviction of the appellant. In this case, it was observed that courts generally do not venture to corroborate the statement of the victim, if such statement inspires confidence. However, if they are unable to rely on the statement of the victim at face value, they may search for additional evidence. Herein, the Allahabad High Court observed that the statement of the prosecutrix was suffering from infirmities and that there were no injuries on the body of the victim. The court further laid down the following:

Presence of injury is not sine qua non to prove rape. Consequently, absence of injuries on the body of the victim would also not falsify rape.
The court must take into consideration that false cases of rape are also reported.

Sundarlal vs. The State of M.P. and Ors. (2017)

This case deals with the medical termination of pregnancy. This judgement is significant in as much as it notes that in accordance with Article 21 of the Constitution of India, the victim/guardian has a right to decide with regard to the termination of pregnancy. In this, the father of the victim filed a petition under Article 226 of the Constitution, seeking permission to terminate the pregnancy of the victim. While deciding the petition, the Madhya Pradesh High Court made the following observations:

When the victim is a minor, the consent of the petitioner, that is, the father in this case, would suffice. It is not essential to also obtain the consent of the victim.
In line with Article 21 of the Constitution, there exists a right to termination of pregnancy.
The victim of the offence of rape, should not be forced to give birth to the child. Consequently, if the provisions of the Medical Termination of Pregnancy Act, 1971 are satisfied, then such pregnancy of the victim can be terminated.
The State was directed to constitute a committee comprising 3 registered medical practitioners. Further, it was observed that such practitioners, in good faith, must form an opinion regarding the termination of pregnancy of the victim.
A further direction was issued to the State, wherein it was directed that if the termination of pregnancy is proceeded with, then they must keep the DNA sample of the foetus in a sealed cover.

Conclusion

The POCSO Act, 2012 comprehensively deals with sexual offences against children. By virtue of Article 15 of the Constitution of India, the Parliament is empowered to make laws for the benefit of women and children. Further, Article 39 of the Constitution casts an obligation on the State to frame policies to secure children of tender age against abuse. For this reason, the POCSO Act was enacted. Further, given the surge in cases of sexual assault against children, the POCSO Act was amended in the year 2019, to incorporate stringent measures to deter such crimes. However, despite the existence of this legislation, there is a growing need to sensitise the public at large, regarding instances of child sexual abuse. Many a time, certain instances go unreported due to lack of action on the part of the public to report such occurrences. While the issue of non-reporting is a crime under Section 21 of the POCSO Act, it is still important to create awareness.

Frequently asked questions (FAQs)

Is the POCSO Act, 2012 gender specific?

No, the POCSO Act is a gender neutral legislation. Regardless of the gender of the child, it applies to all children, as was observed by the Supreme Court in the case of Nipun Saxena vs. Union of India (2018).

If there is an inconsistency in the law as provided under the BNS, 2023 (earlier, the IPC, 1860) and the POCSO Act, 2012 which law would apply?

In case of an inconsistency in the law as specified under the BNS and the POCSO Act, then the POCSO Act will prevail. This is because the POCSO Act is a special legislation drafted specifically to address the concerns relating to children. Therefore, in accordance with Section 42-A of POCSO Act and as was observed by the Supreme Court in the case of Independent Thought vs. Union of India (2017), the provisions of the POCSO Act will prevail insofar as the inconsistency exists.

In cases of sexual assault, can the consent of a minor act as a mitigating circumstance in determining punishment?

No, in case of such grave offences like sexual assault, the presence or absence of consent of the minor is irrelevant. Thus, consent, if at all, is invalid and would not act as a mitigating circumstance. It has time and again been emphasised that a minor being incapable of thinking rationally, cannot give consent. For this reason, the Supreme Court in the case of Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat (2015), observed that in cases of sexual assault, especially with regard to the POCSO Act, presence of ‘consent’ cannot act as a mitigating circumstance.

What factors are considered by the court in granting bail for offences under Section 3, 5, 7 and 9 of the POCSO Act, 2012?

The general rule of presumption of innocence of accused is not applicable for offences under Sections 3, 5, 7 and 9 of the POCSO Act. For this reason, as was observed by the Supreme Court in State of Bihar vs. Rajballav Prasad (2016), for the purposes of POCSO Act, social interest should be given precedence over personal interest. The court ought to carefully examine and balance the liberty of the accused with the probability of forbidding a fair trial if he is released on bail.

Can a conviction for sexual assault be made on the sole testimony of the victim?

Yes, a conviction can be made on the sole testimony of the victim. The Supreme Court in the case of Ganesan vs. State (2020), observed that in instances where the victim’s testimony is trustworthy and reliable, a conviction can result based upon the sole testimony of the victim.

For the purpose of mandatory reporting of offences, when is a person said to have “knowledge” of the commission of the offence?

The term “knowledge” implies a sense of awareness. For a person to “know” something, there must be some direct appeal to such a person’s senses. In the case of Tessy Jose vs. State of Kerala (2018), the Supreme Court observed that the requirement of “knowledge” does not imply that the persons accused of having knowledge of the commission of the offence, have to deduce from the circumstances, that an offence under POCSO Act has been committed.

What is the duty of citizens under the POCSO Act, 2012?

In accordance with the POCSO Act, non-reporting of sexual assaults on minors is a punishable offence under Section 21. The Act casts a duty on the citizens to report to the police or the Juvenile Justice Board, any sexual assault/abuse on a minor, if the same is witnessed or known by such citizen. As was observed by the Supreme Court in the case of Shankar Kisanrao Khade vs. State of Maharashtra (2013), non-reporting is a serious offence under the POCSO Act.

Who is a child for the purpose of the POCSO Act, 2012?

For the purposes of the POCSO Act, the definition of “child” is elucidated under Section 2(1)(d), as “any person below the age of 18”.