PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 | POCSO | POCSO Act
(1) This Act may be called the Protection of Children from Sexual Offences Act, 2012.
(2) It extends to the whole of India, 1[***].
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
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1. Omitted by Jammu And Kashmir Reorganisation Act, 2019, w.e.f. 31.10.2019 the previous text was:-
"except the State of Jammu and Kashmir"
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual assault, sexual harassment, and pornography. It aims to safeguard the rights of children and ensure their well-being by establishing special courts for the trial of such offences.
Section 1 of the POCSO Act outlines the short title, extent, and commencement of the Act. It states that the Act may be called the Protection of Children from Sexual Offences Act, 2012, and it extends to the whole of India. The Act came into force on November 14, 2012.
Section 1 establishes the foundational framework for the POCSO Act, indicating its applicability across India and its purpose of protecting children from sexual offences. It sets the stage for the subsequent sections that define various offences and their punishments.
While Section 1 does not specify punishments, it lays the groundwork for the provisions that follow, which detail various offences against children and the corresponding penalties.
(1) In this Act, unless the context otherwise requires, —
(a) "aggravated penetrative sexual assault" has the same meaning as assigned to it in section 5;
(b) "aggravated sexual assault" has the same meaning as assigned to it in section 9;
(c) "armed forces or security forces" means armed forces of the Union or security forces or police forces, as specified in the Schedule;
(d) "child" means any person below the age of eighteen years;
1[(da) "child pornography" means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child;]
(e) "domestic relationship" shall have the same meaning as assigned
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual assault, harassment, and exploitation. Section 2 of the Act lays down critical definitions that are essential for understanding the scope and application of the law.
Section 2 of the POCSO Act provides definitions for various terms used throughout the Act, including "child," "sexual assault," "penetrative sexual assault," and "aggravated penetrative sexual assault." It establishes that a "child" is any person below the age of 18 years.
The scope of Section 2 is broad, as it encompasses all definitions necessary for the application of the POCSO Act. It aims to ensure that all children, regardless of their circumstances, are protected from sexual offences.
While Section 2 itself does not prescribe punishments, it lays the groundwork for understanding the offences defined in subsequent sections, which do include specific penalties for various forms of sexual assault against children.
This commentary highlights the critical aspects of Section 2 of the POCSO Act, emphasizing its role in protecting children from sexual offences and ensuring justice through a well-defined legal framework.
A person is said to commit "penetrative sexual assault" if—
A Person is said to commit "penetrative sexual assault" if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
1[(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 2[ten years] but which may extend to imprisonment for life, and shall also be liable to fine.
3[(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but 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.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]
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The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual offenses. Section 4 specifically addresses the crime of penetrative sexual assault against minors, establishing stringent penalties for offenders.
Section 4 of the POCSO Act defines the offense of penetrative sexual assault and prescribes the punishment for committing such an act against a child. It states that whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but may extend to life imprisonment.
Section 4 applies to all forms of penetrative sexual assault against children, irrespective of the relationship between the perpetrator and the victim. It encompasses various scenarios, including those involving familial relationships, acquaintances, or strangers.
The punishment under Section 4 is severe, reflecting the gravity of the offense. The minimum sentence is seven years of rigorous imprisonment, which can extend to life imprisonment, along with fines. The law aims to deter potential offenders and provide justice for victims.
This commentary highlights the critical aspects of Section 4 of the POCSO Act, emphasizing the importance of protecting children from sexual offenses and ensuring justice for victims.
(a) Whoever, being a police officer, commits penetrative sexual assault on a child —
(i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or (iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or a
Section 5 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, delineates the offence of Aggravated Penetrative Sexual Assault against children, emphasizing the gravity of acts committed under circumstances that enhance the severity of the crime. It aims to provide stringent punishment for heinous acts involving minors, especially when committed by persons in positions of trust, authority, or with certain aggravating factors.
Section 5 prescribes that whoever commits penetrative sexual assault on a child and falls within specific aggravating circumstances—such as using a position of trust, committing the assault in a manner that causes grievous harm, or inflicting the assault in a manner that aggravates the offence—shall be deemed to have committed Aggravated Penetrative Sexual Assault. The section mandates minimum imprisonment of ten years, extendable to life imprisonment, along with fines, depending on the circumstances.
Section 5 extends the ambit of the law to cover not only basic penetrative sexual assault but also the aggravated forms that involve additional factors such as breach of trust, abuse of position, or causing grievous injury. It applies to all children under 18 and encompasses acts committed within or outside the prosecution's jurisdiction, provided the act is committed in India. The section ensures protection against a broad range of sexual offences with a focus on vulnerable children.
This concise commentary aims to encapsulate the legal nuances of Section 5 of the POCSO Act, 2012, reflecting its comprehensive approach to safeguarding children against the gravest forms of sexual offences.
1[(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but 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.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]
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1. Subs. by s. 5, ibid., for section 6 (w.e.f. 16-08-2019).
Section 6 of the POCSO Act, 2012, embodies the Indian legal framework's strict stance against aggravated penetrative sexual assault on children. It emphasizes severe punishments to deter such heinous crimes, reflecting India’s zero-tolerance policy towards child sexual abuse, especially in aggravated cases involving force, injury, or exploitation.
Section 6 prescribes that whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a minimum of ten years, which may extend to life imprisonment or even death, along with a fine. The section underscores the gravity of sexual offences against children and mandates stringent punishment for such offences.
Section 6 applies to cases where the sexual assault is aggravated, meaning it involves additional factors such as use of force, causing grievous injury, or other heinous circumstances. It covers penetrative sexual assault committed by any person, including family members, in positions of trust, or strangers. The section also aligns with the broader objectives of the Act to protect children from exploitation and abuse, ensuring strict deterrence.
"Stringent Penalty" - Section 6 enforces severe punishments reflecting the gravity of child sexual abuse, aligning with the Act's objective to deter such offences - [General overview of POCSO, 2012]
"Aggravated Circumstances" - The section specifically targets cases involving force, injury, or other heinous factors, ensuring that the law addresses the most severe forms of sexual assault on children - [Section 6, POCSO Act, 2012]
"Minimum Imprisonment" - The prescribed minimum of ten years ensures that even lesser aggravated cases do not escape rigorous punishment, reinforcing the deterrent effect - [Section 6, POCSO Act, 2012]
"Life Imprisonment & Death Penalty" - The provision for life imprisonment or death in the rarest of rare cases underscores the seriousness with which the law treats aggravated child sexual offences - [Section 6, POCSO Act, 2012]
"Broad Coverage" - The section encompasses all forms of aggravated penetrative assault, including acts involving use of objects, causing injury, or other aggravating factors, ensuring comprehensive coverage - [Case law: Para 16, HC upheld conviction based on medical and forensic evidence]
"Focus on Child’s Age" - The law explicitly defines the victim as below 18 years, and the severity of punishment is heightened in cases involving minors, emphasizing the protection of vulnerable children - [Section 2(d) of POCSO Act]
"Medical & Forensic Evidence" - Courts rely heavily on medical and forensic evidence to establish aggravated penetrative assault, as seen in case judgments, reinforcing the importance of such evidence in proving guilt - [Case references: Para 16, 28]
"Strict Liability & Deterrence" - The mandatory minimum sentence reflects the law’s intent to impose strict liability and serve as a deterrent against child sexual abuse - [Section 6, POCSO Act]
"Rarest of Rare" Doctrine - In cases involving extreme cruelty or heinous circumstances, courts have upheld the death penalty, but generally, life imprisonment is the norm, emphasizing the importance of proportionality - [Case law: Para 15, 16]
"Protection of Victim’s Privacy" - Section 6 aligns with the Act’s broader objective to protect the child’s privacy and dignity during proceedings, though not explicitly stated in the section, it is a core principle - [General principles of POCSO, 2012]
"Legal Reforms & Modern Approach" - The section exemplifies India’s shift towards a victim-centric, zero-tolerance approach, with stringent punishments to uphold justice for child victims - [Overview of POCSO, 2012]
"Implementation & Challenges" - Effective enforcement of Section 6 requires meticulous investigation, medical evidence, and sensitive handling of cases, as highlighted in case law emphasizing the importance of evidence - [Case law: Para 28, 36]
"Comparison with Other Sections" - Section 6 is distinct from lesser offences under the Act (e.g., Section 12) and is reserved for the most severe cases involving penetration and aggravating factors - [Legal commentary: Emphasizes differentiation between offences]
"Legal Threshold & Burden of Proof" - The prosecution must establish the aggravating circumstances beyond reasonable doubt, with medical and forensic evidence playing a crucial role - [Case law: Para 16, 28]
"Reformative & Retributive Aspects" - While the law emphasizes retribution through severe punishment, it also recognizes the possibility of reform in less heinous cases, but in grave cases, stringent punishment prevails - [Legal philosophy: Rarest of rare doctrine]
"Impact on Society" - The stringent provisions serve as a strong message to society about the zero-tolerance policy towards child sexual abuse, aiming to protect the vulnerable and uphold societal morals - [Legal overview: Acts as a societal deterrent]
Section 6 of the POCSO Act, 2012, underscores India’s unwavering stance against aggravated sexual offences involving children. It prescribes severe punishments, including life imprisonment and death in exceptional cases, to ensure justice, deterrence, and protection of the most vulnerable members of society. Judicial interpretation consistently emphasizes the importance of credible evidence, especially medical and forensic, and the need for strict adherence to procedures to uphold the law’s integrity.
Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual offences, including sexual assault, harassment, and pornography. Section 7 specifically addresses the definition and scope of sexual assault against children, establishing the legal parameters for prosecuting such offences.
Section 7 of the POCSO Act defines "sexual assault" as any act involving physical contact with a child that is done with sexual intent. This includes touching the vagina, penis, anus, or breast of the child or making the child touch these parts of the offender or another person.
The scope of Section 7 is broad, encompassing various forms of sexual assault that do not necessarily involve penetration. It aims to protect children from any form of sexual abuse, regardless of the method employed by the offender.
The punishment for sexual assault under Section 7 is outlined in Section 8 of the POCSO Act, which prescribes a minimum sentence of three years of rigorous imprisonment, which may extend to five years, along with a fine.
This commentary highlights the critical aspects of Section 7 of the POCSO Act, emphasizing its importance in safeguarding children from sexual offences and the legal mechanisms in place to ensure justice for victims.
Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, criminalizes acts of sexual assault on children, emphasizing the importance of protecting minors from non-penetrative sexual offences with stringent punishments. It forms a core component of the legal framework aimed at safeguarding children’s physical and emotional integrity.
Section 8 prescribes that whoever commits sexual assault (defined under the Act as non-penetrative acts of a sexual nature with a child under 18) shall be punished with imprisonment for a minimum of three years, which may extend up to five years, along with a fine. The section specifically targets acts of physical contact with sexual intent, including touching private parts or making the child touch the offender’s private parts.
Section 8 covers a broad spectrum of non-penetrative sexual acts, including touching private parts, exposing oneself, or making the child touch the offender’s private parts. It applies to any person who commits such acts, whether in private or public, and irrespective of consent, given the child's minor status and the presumption of innocence in criminal law.
The section mandates a minimum imprisonment of three years, extendable up to five years, and imposes a fine. The law aims to act as a deterrent against sexual misconduct involving children and ensures strict penalties to uphold the child's dignity and safety.
Protection - Section 8 provides a statutory shield to children against sexual offences, emphasizing the State’s commitment to child safety and dignity. [Source: "Protection of Children from Sexual Offences Act, 2012"]
Broad Definition - The section encompasses acts of physical contact with sexual intent, including touching private parts, thereby covering a wide range of non-penetrative sexual misconduct. [Source: "PDF The Protection of Children from Sexual Offences Act, 2012"]
Mens Rea - The requirement of sexual intent is implicit, ensuring that acts are punishable only when committed with the purpose of sexual gratification or abuse. [Source: "Section 8 of the POCSO Act: Safeguarding Children from Non-Penetrative Sexual Offences"]
Age of Victim - The law specifically protects children below 18 years, aligning with the juvenile protection framework and emphasizing the vulnerability of minors. [Source: "Section 8 prescribes punishment ranging from three to five years imprisonment along with fine."]
Stringent Punishment - The minimum sentence of three years reflects the seriousness of child sexual offences, with the possibility of extending up to five years to act as a deterrent. [Source: "Protection of Children from Sexual Offences Act, 2012"]
Inclusion of Non-Penetrative Acts - Acts like touching, fondling, or any physical contact of a sexual nature are explicitly covered, recognizing that harm can occur without penetration. [Source: "Protection of Children from Sexual Offences (POCSO) Act regarding child sexual abuse laws in India"]
Burden of Proof - The law presumes guilt once the act is proved, shifting the burden onto the accused to prove innocence, especially under the presumption provisions of the Act. [Source: "Section 29 of the POCSO Act: Presumption of guilt unless proven otherwise"]
Corroboration - Medical evidence and victim testimony are crucial; the law encourages reliance on consistent and credible evidence to establish guilt. [Source: "Evidence of victim’s testimony supported by medical reports is crucial in establishing guilt."]
Protection of Privacy - The Act mandates confidentiality and privacy of the child throughout proceedings, ensuring that the child's dignity is maintained. [Source: "The POCSO Act also aims to protect the child's identity and privacy throughout the judicial process."]
Preventive and Deterrent - The prescribed punishments aim to prevent sexual offences against children and serve as a strong message against such conduct. [Source: "Stringent punishment according to the gravity of the offence with a maximum punishment of lifelong imprisonment and fine."]
Legal Safeguards - The Act provides child-friendly procedures, including recording of statements under Section 164 Cr.P.C., to facilitate truthful testimony while minimizing trauma. [Source: "Section 164 of Cr.P.C. and its role in child sexual assault cases."]
Scope of Acts Covered - Acts like touching the private parts, exposing oneself, or any physical contact with sexual intent are explicitly covered, recognizing the varied forms of child sexual abuse. [Source: "Section 8 of the POCSO Act: Safeguarding Children from Non-Penetrative Sexual Offences"]
Legal Precedents - Courts have consistently emphasized that even minor acts of physical contact with sexual intent constitute offences under Section 8, reinforcing the law's broad protective scope. [Source: "Judgments highlighting the interpretation of Section 8 in protecting minors."]
Sentencing Considerations - Courts are guided to impose minimum sentences but can extend them based on aggravating factors, ensuring flexibility within the statutory framework. [Source: "Section 8 prescribes minimum three years, but courts may extend to five years."]
Role of Evidence - The credibility of victim testimony, medical reports, and forensic evidence are central to establishing guilt beyond reasonable doubt. [Source: "Medical evidence supporting the victim's testimony is critical."]
Legal Evolution - Section 8 exemplifies the progressive approach of Indian law in addressing child sexual offences with a focus on deterrence, victim protection, and swift justice. [Source: "Amendments and judicial interpretations enhancing Section 8's scope."]
Section 8 of the POCSO Act, 2012, is a vital legal provision aimed at criminalizing acts of sexual contact with children, with strict penalties to deter offenders and protect minors’ rights. Its broad scope, emphasis on evidence, and procedural safeguards reflect a comprehensive approach to combating child sexual abuse in India.
Note: All references are based on the provided sources and relevant legal principles derived therefrom.
(a) Whoever, being a police officer, commits sexual assault on a child—
(i) within the limits of the police station or premises where he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer; or
(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member of the security or armed forces; or
Section 9 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, specifically addresses the offence of sexual assault committed against children, including aggravated forms involving various circumstances and acts. It aims to provide stringent punishment and define the scope of sexual offences against minors, emphasizing the gravity of crimes involving children and ensuring their protection under the law.
Section 9 delineates the offence of sexual assault, with clauses (m), (n), and (o) specifying aggravated sexual assault in particular circumstances:- Section 9(m): Acts involving sexual contact with a child below 12 years with sexual intent.- Section 9(n): Sexual assault committed by a relative, guardian, or person in a position of trust or authority over the child.- Section 9(o): Acts involving sexual contact with a child with sexual intent, not covered explicitly under other clauses.
The section prescribes that such acts are punishable with a minimum imprisonment of 5 years, extendable up to 7 years, along with fine, and in certain cases, the punishment can be more severe depending on the facts.
This concise commentary encapsulates the legal scope, interpretation, and judicial understanding of Section 9 of the POCSO Act, 2012, highlighting its importance in safeguarding children from sexual offences and ensuring stringent punishment for offenders.
Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
Section 10 of the POCSO Act prescribes the punishment for aggravated sexual assault against children, emphasizing the gravity of such offences and ensuring stringent penalties to deter offenders. The provision underscores the importance of protecting minors from severe forms of sexual violence and aligns with the Act’s child-centric approach.
Section 10 states that any person who commits aggravated sexual assault on a child shall be punished with imprisonment for a term which shall not be less than five years but may extend to seven years, and shall also be liable to a fine. The section applies in cases where the offence involves severe circumstances, such as sexual assault with aggravating factors like use of force, injury, or acts committed in a manner that causes severe trauma.
Section 10 applies to cases of aggravated sexual assault, including acts like sexual contact, penetration, or other forms of sexual violence committed under circumstances that elevate the severity of the offence. It covers acts by any person, including those in positions of trust or authority, and ensures that the punishment reflects the heinous nature of the crime. The section also aligns with the child-friendly procedures mandated by the Act, ensuring that the rights of the child are protected during investigation and trial.
The minimum imprisonment prescribed is five years, which can extend up to seven years, along with a fine. The law mandates that the sentence should not be less than five years, emphasizing the seriousness of aggravated sexual offences against minors. The fine may be used for the victim’s benefit, including medical expenses and rehabilitation, as per the legal provisions.
In conclusion, Section 10 of the POCSO Act is a robust legal provision designed to impose strict penalties for aggravated sexual offences against children, emphasizing the severity of such crimes and the State’s commitment to child protection. The minimum sentence of five years and the possibility of extending up to seven years reflect the gravity attached to offences involving minors under aggravating circumstances, reinforcing the law’s deterrent and retributive objectives.
A person is said to commit sexual harassment upon a child when such person with sexual intent,—
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual abuse and exploitation. Section 11 specifically addresses the offense of sexual harassment against children, outlining various acts that constitute such harassment.
Section 11 of the POCSO Act defines sexual harassment as actions committed with sexual intent towards a child. This includes a range of behaviors such as making inappropriate gestures, exhibiting parts of the body, or showing pornographic material to a child.
The scope of Section 11 is broad, encompassing various forms of sexual harassment, including:- Uttering inappropriate words or sounds.- Making gestures or exhibiting body parts.- Showing pornographic material.- Following or contacting a child inappropriately.
The punishment for committing sexual harassment under Section 11 is outlined in Section 12 of the POCSO Act, which prescribes a maximum sentence of three years of imprisonment and/or a fine.
This commentary provides an overview of Section 11 of the POCSO Act, emphasizing its significance in protecting children from sexual harassment and the legal implications surrounding it.
Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Section 12 of the POCSO Act, 2012, addresses the offence of sexual harassment of a child, establishing the punishment and emphasizing the gravity of protecting minors from sexual misconduct. It forms a crucial part of the legal framework aimed at safeguarding children from sexual offences, including harassment, intimidation, and exploitation.
Section 12 prescribes that whoever commits sexual harassment upon a child shall be punished with imprisonment which may extend to three years and shall also be liable to a fine. The section explicitly criminalizes acts of sexual harassment, including any unwelcome physical contact, advances, or verbal conduct of a sexual nature directed at a child.
Section 12 covers a broad spectrum of sexual harassment acts, including physical contact, advances, or verbal conduct of a sexual nature. It applies to all forms of sexual harassment against minors, whether in public or private spaces, and includes acts that may not involve physical contact but are of a sexual nature, such as verbal or visual conduct.
The section provides for:- Imprisonment for up to three years.- Liability to pay a fine.- The punishment is bailable, but courts may impose conditions to prevent further offences or harassment.
Section 12 of the POCSO Act, 2012, plays a vital role in criminalizing sexual harassment of children, with provisions that ensure effective punishment and protection. Its broad scope encompasses verbal, visual, and physical acts, emphasizing the importance of safeguarding minors from all forms of sexual misconduct. Judicial precedents reinforce the need for strict enforcement, credible evidence, and swift justice to uphold the rights and dignity of child victims.
Note: This commentary synthesizes legal principles, statutory provisions, and case law references to provide a comprehensive understanding of Section 12 of the POCSO Act, 2012.
Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes—
(a) representation of the sexual organs of a child;
(b) usage of a child engaged in real or simulated sexual acts (with or without penetration);
(c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.
Explanation.—For the purposes of this section, the expression ‘‘use a child’’ shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of th
Section 13 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, criminalizes the use of children for pornographic purposes, aiming to prevent exploitation, abuse, and the circulation of child pornography. It complements other provisions of the Act that address sexual assault, harassment, and exploitation, establishing stringent punishments to deter such offences and protect minors' dignity and rights.
Section 13 states that:- Anyone who uses a child for pornographic purposes by either representing the sexual organs of the child or involving the child in any real or simulated sexual act shall be guilty of an offence.- The section explicitly criminalizes the act of taking, distributing, or possessing child pornography.- The punishment prescribed is imprisonment for a minimum of five years, extendable to seven years upon subsequent convictions, along with a fine.
In summary, Section 13 of the POCSO Act is a comprehensive provision aimed at criminalizing all forms of child pornography, emphasizing strict punishments, media regulation, and the importance of safeguarding children's rights against exploitation in the digital age. Its effective enforcement is crucial to uphold the constitutional and international obligations toward protecting minors from sexual exploitation and abuse.
1[(1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.
(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1).]
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1. Subs. by Act 25 of 2019, s. 7, for section 14 (w.e.f. 16-08-2019).
Section 14 of the POCSO Act, 2012, prescribes the punishment for using a child for pornographic purposes, emphasizing stringent penalties to prevent exploitation and abuse of minors. The law aims to safeguard children’s dignity, health, and development by criminalizing acts that involve the sexual exploitation of children through visual or other means.
Section 14(1) states that whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a minimum of five years, which may extend to seven years upon subsequent convictions, along with a fine. It also criminalizes storage of child pornography and other related acts, with provisions for enhanced punishments for repeat offenders and specific acts involving sexual exploitation.
This section broadly covers:- The act of involving a child in pornographic material- The storage, distribution, or transmission of such material- Acts that facilitate or promote child pornography- Acts with sexual intent, whether through visual depiction or physical actsThe section applies irrespective of whether the child consented or was aware of the acts, emphasizing the protective intent of the law.
In conclusion, Section 14 of the POCSO Act, 2012, embodies a comprehensive approach towards criminalizing and punishing acts involving the use of children for pornographic purposes, reflecting the law’s commitment to protecting children from exploitation, ensuring deterrence through stringent penalties, and aligning with constitutional and international standards.
1[(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.
(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.
(3) Any person, who stores or possesses pornographic material in any form in
Section 15 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, addresses offences related to the storage, possession, or transmission of child pornography. It aims to deter the exploitation of children through digital and physical means by establishing strict penalties and defining the scope of criminal liability for such acts.
Section 15 criminalizes the storage or possession of child pornographic material in any form, with or without the intent to share, transmit, or publish. The section prescribes imprisonment for a minimum of five years, which can extend up to life imprisonment, and fines. It emphasizes that even mere possession or storage, without the act of sharing or transmitting, constitutes an offence if the material involves a child.
In summary, Section 15 of the POCSO Act, 2012, provides a comprehensive framework to criminalize the possession, storage, or control of child pornographic material. It underscores that even passive possession, without transmission, is an offence, reflecting the law's proactive stance against child exploitation. The penalties are stringent, and the law employs a broad and purposive interpretation to effectively deter and penalize all acts contributing to the proliferation of child pornography in any form, digital or physical.
A person abets an offence, who— First.—Instigates any person to do that offence; or
Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation I.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.
Explanation II.—Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of
Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.
Explanation.— An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.
Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974)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,—
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be—
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.
(4) In case contents are being
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.
(1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a child under this Act.
(1) Any person, who makes false complaint or provides false information against any person, in respect of an offence committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.
(2) Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child.
(3) Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimizing 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.
(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child:
Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.
(4) Any person who contravenes the
(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.
(1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974)(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.
(1) The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.
(2) Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance of a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child.
(3) The Magistrate or the police officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of the child.
(4) Wherever possible, the
Section 26 of the POCSO Act, 2012, emphasizes the importance of recording the statement of a child victim in a manner that minimizes trauma and ensures reliability. It is a crucial safeguard to uphold the child's rights during the investigation process, balancing effective prosecution with the child's emotional and psychological well-being.
Section 26 mandates that:- The Magistrate or police officer shall record the child's statement in the child's own words.- Such statement must be recorded in the presence of the child's parents or any trusted person.- The statement should be recorded in a manner that avoids unnecessary injury or inconvenience to the child.- The law recognizes the importance of safeguarding the child's identity and emotional state during the process.
Section 26 itself does not prescribe punishment; rather, it provides procedural safeguards. Non-compliance with the provisions of Section 26 can lead to:- The statement being deemed inadmissible or unreliable.- Possible acquittal or appeal on grounds of violation of procedural safeguards.- The courts may also consider such violations as affecting the fairness of the trial, as seen in various judgments.
Section 26 of the POCSO Act is a cornerstone provision designed to uphold the child's dignity, prevent secondary victimization, and ensure the reliability of the child's testimony. Proper compliance with its mandates is critical for the fairness of the trial and the efficacy of justice delivery in cases of child sexual abuse. Courts have consistently underscored that safeguarding the child's interest and ensuring procedural fairness are paramount, and violations can significantly impact case outcomes.
**- ["Abhishek K. A. @ Bhanu, S/o. Asokan VS State of Kerala, Represented By The Public Prosecutor, High Court of Kerala, Ernakulam"]- ["Lalruatsanga VS State Of Mizoram"]- ["Bhalu Murmu @ Galu VS State of Odisha"]- ["Mumtaz VS The State Of NCT. Of Delhi"]- ["State Of Karnataka VS Mathru Sateri Gurav"]- ["Lalruatsanga VS State Of Mizoram"]- ["Balwant VS State of Rajasthan"]- ["Rabin Burman S/o Adar Burman VS State of Sikkim"]- ["Bhalu Murmu @ Galu VS State of Odisha"]- ["State vs Guddu Pal"]
(1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1973).
(2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
(3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
(4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a comprehensive legal framework for the protection of children from sexual assault, harassment, and exploitation. Section 27 specifically addresses the medical examination of child victims, emphasizing the importance of timely and appropriate medical care in cases of sexual offences against minors.
Section 27 mandates that the medical examination of a child who is a victim of sexual offences must be conducted as soon as possible after the incident. It specifies that the examination should be performed by a qualified medical practitioner, preferably a woman, to ensure the comfort and dignity of the child.
The scope of Section 27 extends to all cases of sexual offences against children, ensuring that medical examinations are not only conducted but are also done in a manner that respects the child's rights and dignity. This section is crucial in establishing the physical evidence of sexual abuse, which can significantly impact the prosecution of such cases.
While Section 27 itself does not prescribe punishment, it is linked to the overall framework of the POCSO Act, which provides for severe penalties for those found guilty of sexual offences against children, including imprisonment and fines.
This commentary highlights the critical aspects of Section 27 of the POCSO Act, emphasizing its role in safeguarding the rights and dignity of child victims in sexual offence cases.
(1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006)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 this section.
(2) While trying an offence under this Act, a Special Court shall also try an offence [other than the offence referred to in sub-section (1)], with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.
(3) The Special Court constituted under this Act, notwithst
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.
Section 29 of the POCSO Act introduces a significant legal presumption aimed at streamlining the prosecution process in child sexual offence cases. It enhances the evidentiary framework by shifting the burden of proof to the accused once certain foundational facts are established. This provision underscores the importance of protecting children against sexual crimes and balancing the evidentiary burden between prosecution and defence.
Section 29 states:"Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7, and 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."This presumption is rebuttable, meaning the accused can produce evidence to establish their innocence or challenge the presumption.
Section 29 of the POCSO Act is a pivotal legal provision that enhances the efficacy of child sexual offence trials by establishing a presumption of guilt upon proof of foundational facts. However, its operation is bounded by the principles of fairness, requiring credible evidence and allowing the accused to rebut the presumption. Proper application ensures justice for child victims while safeguarding the rights of the accused.
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.—In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
Section 30 of the POCSO Act, 2012, establishes a statutory presumption concerning the mental culpability of the accused in sexual offence cases involving children. It is a crucial provision that shifts the burden of proof regarding the mental state of the accused, thereby facilitating the prosecution’s case and reinforcing the protective intent of the legislation.
Section 30 states that in prosecutions under the Act requiring a culpable mental state, the court shall presume the existence of such mental state unless the accused proves otherwise. The presumption is rebuttable, and the standard of proof is "beyond reasonable doubt." It further clarifies that “culpable mental state” includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact.
Section 30 of the POCSO Act, 2012, embodies the legislative intent to strengthen the prosecution’s position in cases involving child sexual offences by presuming the mental culpability of the accused. It balances the need for effective justice with the fundamental principle of proof beyond reasonable doubt, making it a pivotal provision that enhances the efficacy of child protection laws.
Note: The references in Paras 49, 50, 166, 167, 168, 171 are based on detailed case law analyses and judicial interpretations, emphasizing the operation and scope of Section 30.
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.
(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.
(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974)and provision of that Code shall have effect accordingly.
(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the child i
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to provide a robust legal framework for the protection of children from sexual offences. Section 33 specifically addresses the procedures and powers of Special Courts in handling cases under this Act, emphasizing the need for a child-friendly judicial process.
Section 33 outlines the procedural safeguards for child victims during the trial process. It mandates that the Special Court shall ensure that the child is not called repeatedly to testify, thereby minimizing trauma and protecting the child's dignity.
The scope of Section 33 extends to all proceedings under the POCSO Act, ensuring that the rights of child victims are upheld throughout the judicial process. It mandates that the identity of the child is protected and that the trial is conducted in a child-friendly environment.
While Section 33 itself does not prescribe punishment, it sets the procedural framework within which offences under the POCSO Act are tried, ensuring that the rights of the child are prioritized during the trial process.
This commentary highlights the importance of Section 33 of the POCSO Act in safeguarding the rights of child victims and ensuring a fair and just legal process.
(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 1[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].
(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 personas determined by it under sub-section (2) was not the correct age of that person.
-----------------------------
1. Subs. by Act 25 of 2019, s. 9, for “the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)” (w.e.f. 16-08
(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.
(2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.
Section 35 of the POCSO Act emphasizes the importance of timely recording of the child's testimony to ensure effective justice delivery and to prevent re-traumatization of the victim. It underscores the procedural safeguards designed to protect the child's mental health and the integrity of evidence in cases of sexual offences against minors.
Section 35 prescribes that:- The evidence of a child victim must be recorded within thirty days of the Special Court taking cognizance of the offence.- The Court must record reasons for any delay in this process.- The trial should, as far as possible, be completed within one year from the date of cognizance.- The section also stipulates that non-compliance with these timelines cannot be a standalone ground for the accused's bail, but delays must be justified with valid reasons.
Section 35 of the POCSO Act underscores the importance of speedy, sensitive, and procedural recording of child victims' testimony to uphold the twin objectives of delivering justice and protecting the child's mental health. While delays due to practical constraints are acknowledged, they must be supported by valid reasons. Non-compliance cannot be used as a sole ground for bail or to dismiss cases, reinforcing the law's emphasis on child-centric justice.
Note: All references are based on the provided sources, summarized as per the requested format.
(1) The Special Court shall ensure that the child is not exposed in anyway 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.
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).
(1) wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child.
(2) If a child has a mental or physical disability, the Special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed to record the evidence of the child.
Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of non-governmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.
Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974)the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:
Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.
The provisions of sections 3 to 13 (both inclusive) shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian.
1[Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 2[376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], 3[376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
STATE AMENDMENT
Arunachal Pradesh
Amendment of section 42.—In section 42 of the Protection of Children Act, 2012 for the words figures and letters sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 o
Section 42 of the POCSO Act, 2012, addresses the principle of overriding severity in punishment where an act constitutes an offence under both the POCSO Act and other penal laws, primarily the Indian Penal Code (IPC). It ensures that the law aims to impose the most appropriate and severe punishment for grave offences involving children, maintaining the protective intent of the legislation.
Section 42 states that if an act or omission constitutes an offence punishable under the POCSO Act and also under other laws like the IPC, the offender shall be liable to punishment under the law that prescribes the greater punishment. It emphasizes that the provisions of the POCSO Act are in addition to, and not in derogation of, other laws, but in cases of overlap, the harsher penalty applies.
Section 42 of the POCSO Act, 2012, embodies the legislative intent to impose the harshest penalties in cases of offences against children, especially where multiple laws overlap. It reinforces the protective and deterrent framework of child laws by ensuring that maximum punishment is applied, aligning with constitutional principles and international commitments. Courts are bound to interpret this provision harmoniously, ensuring that justice for minors is served with severity and consistency.
[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.]
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.
(1) The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) shall, in addition to the functions assigned to them under that Act, also monitor the implementation of the provisions of this Act in such manner as may be prescribed.
(2) The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, while inquiring into any matter relating to any offence under this Act, have the same powers as are vested in it under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
(3) The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, also include, its activities under this section, in the annual report referred to in sect
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:—
1[(a) the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority under sub-section (1) of section 15;
(aa) the manner of reporting about pornographic material in any form involving a child under sub-section (2) of section 15;]
2[(ab)] the qualifications and experience of, and the fees payable to, a translator or an interpreter, a special educator or any person familiar with the manner of communication of the child or an expert in
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for removal of the difficulty:
Provided that no order shall be made under this section after the expiry of the period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
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