The Protection Of Children From Sexual Offences Act, 2012

An Introduction of POCSO Act: Comprehensive legislation with clear objectives to Stop abuse of the tender age of children. Prevent exploitation of a child. Facilitate development of a child in a healthy manner. Enforce the right of children for safety from sexual abuse & exploitation.

Why POCSO ? No separate chapter in IPC to deal with offences of exploitation pertaining to children. Only Section 363-A , 366-A, 372, 293 and so on toward dealing with offences against children in IPC. But not found enough.

Existing Provisions in IPC 363-A (Kidnapping of minor for begging. 366-A (Procuration of a minor girl) 372 (Selling minor for prostitution) 293 (Sale of obscene material to young persons)

Child means not only girl child Salient features of the POCSO: Child means not only girl child Scope of sexual offences made wider than even in IPC and defined clearly. Child friendly procedure of investigation/ trial incorporated. Contd..

Provision of free legal aid of the choice of victim or family. Time limit fixed for statement of child and for trial also. Alternative punishment & overriding effect of POCSO Act.

POCSO Act Act extends to the whole of India except J & K. Came into force from 14th Nov. 2012 46 Sections 9 Chapters One Schedule 7 Rules Contains

Who is Child ? Any person (irrespective of gender) below the age of 18 year is child. (Sec-2(d))

Classification of main offences under POCSO: Penetrative sexual assault (Sec-3/4) Aggravated penetrative sexual assault (Sec-5/6) Sexual assault (Sec-7/8) Aggravated sexual assault (Sec-9/10) Sexual harassment (sec-11/12)

“Aggravated” means when committed by a person in a position of trust or authority of child “penetrative” means inserting any object into mouth/vagina/urethra/anus

Penetrative Sexual Assault (Section 3) – A person is said to commits penetrative sexual assault, if he:- (a) Penetrates into the vagina, mouth, urethra or anus of a child. (b) Inserts, any object or a part of the body, not being the penis.

(c) Manipulates any part of the body of a child. d) Applies his mouth to the penis, vagina, anus, urethra of a child or makes the child to do so with him or any other person;

(Section 4) :- Punishment for Penetrative Sexual Assault:- Not less than seven years which may extend to imprisonment for life, and fine

Aggravated Penetrative Sexual Assault (Section 5) – Who ever being in authority or in trust commits penetrative sexual assault on a child is said to commit aggravated penetrative sexual assault.

(Section 6) :- Punishment for Aggravated Penetrative Sexual Assault:- Not less than ten years which may extend to imprisonment for life, and fine.

Sexual assault (Section -7): Touches or forces the victim to touch, with sexual intent, any part of body such as: * vagina, * penis, * anus, * breast, etc.

Not less than three years which may extend to five years, and fine (Section 8) :- Punishment for Sexual Assault Not less than three years which may extend to five years, and fine

Aggravated Sexual Assault (Section 9) Who ever being in authority or in trust commits sexual assault on a child is said to commit aggravated sexual assault.

Not less than five years which may extend to seven years, and fine (Section 10) :- Punishment for Aggravated Sexual Assault:- Not less than five years which may extend to seven years, and fine

Sexual Harassment of the Child (Section 11) A person is said to commit sexual harassment upon a child when such person – Utters any word or make any sound or any gestures, etc. with sexual intent, or Makes a child exhibits his body or any part of his body so its seen by him or any other person, or

Shows any object to a child in any form or media or pornographic purposes, or Repeatedly or constantly follows or watches or contacts a child either directly or any other means, or Threatens to use, of any part of body of the child or involvement in a sexual act of the child in any form of media, or Entices a child or gives gratification for pornographic purposes.

Three years and fine (Section 12) :- Punishment for Sexual Harassment :- Three years and fine

Use of Child for Pornographic Purposes (Section 13) Uses a child in any form of media for sexual gratification , which includes representation of sexual organs, engaged in sexual acts, indecent representation of a child

(Section 14 (1)) :- Punishment for using child for pornographic purposes:- Five years and fine and in the event of subsequent conviction, seven years and fine

Punishment for storage of pornographic material involving child (Section 15) – Who stores, for commercial purpose any pornographic material in any form involving a child shall be punished under this section upto 3 years imprisonment or fine or both

Abetment & Attempt: How penalized? Punishment for abetment of offence is the same as the main offence. (Sec-17) Punishment for Attempt of the offence is half of the prescribed punishment of the main offence. (Sec-18)

Who can report? (Sec 19 to 21): Any person having knowledge of crime has mandatory obligation of report, or The victim child can also report to Spl. Juvenile Police Unit or local police

Express obligation upon following certain agencies (Sec-20) Media Hotels Hospitals Clubs Studio etc . To report the incident as soon as they come across it.

Failure to report or record is also punishable u/s 21 : Whosoever fails to report or even if the police fails to record the crime u/s 19 & 20 of the Act is punishable with imprisonment up to six months or fine or both

Non recording of FIR is also made punishable u/s 166-A IPC (w. e. f 03 Any police officer who fails to record a case of incident of Acid attack (326-A & B IPC) Sexual Harassment etc. (354, 354 A to D IPC) Trafficking (370, 370 A ) Rape (376, 376 A to E) Indecent gesture (509 IPC) Punishment= minimum imprisonment of 6 months, can extend to 2 years + fine

False complaint and false information is also an offence, punishable U/S 22 by any person other than child. In respect of offences:- Penetrative sexual assault (sec-3) Aggravated Penetrative sexual assault (sec-5) Sexual assault (Sec-7) Aggravated Sexual assault (Sec-9) Punishment Up to six months or fine or both

Bar on Media (sec-23) Media barred from disclosing the identity of the child without the permission of the Special Court. Otherwise Punishment= 6 month to 1 year or fine or both

Who shall record statement of victim & where?-(Sec-24) Preferably a woman police officer not below the rank of SI to record the statement of child At the residence or place of choice of victim/child Child not to be detained at PS at night at all.

Precautions for Police Officer while recording the statement of child: (Sec-24) Not to be in Uniform language as spoken by the child. Identity of the child to be protected. Child should not come across the accused.

Role of CWC (Rule 4 of POCSO Rules 2012) On receipt of the complaint police to make immediate arrangements within twenty-four hours, if need be:- to give the victim child, care and protection such as admitting the child into shelter home, or to provide treatment etc from the nearest hospital

Recording of Statement U/S 164 CrPC Sec-25: By the Magistrate presence of the advocate of the accused shall not apply.

Sec-26: Additional provisions regarding statement to be recorded Whenever necessary take the assistance of a special educator/translator/interpreter, etc. statement shall be recorded in the presences of the parents or any other person whom the child has trust or confidence. Whenever possible shall ensure that the statement of child is also recorded by audio-video means.

Medical Examination Of Child (Sec 27 & Rule 5) Medical examination shall be conducted within 24 hours in the presence of the parents of the child or guardian (164-A CrPC) If victim is a girl , the medical examination shall be conducted by a woman doctor. Provisions of sections 3 to 13 of the POCSO Act shall not apply in medical examination or treatment of the child(section-41)

Special Courts Special courts to be established for trial of POCSO Offences. (Sec-28) Special PPs to be appointed. (Sec-32) No need of committal from the M.M (Sec-33)

Recording of statement Investigation Trial of offence Child friendly procedure framed for :- Reporting of evidence Recording of statement Investigation Trial of offence

Burden of Proof (Sec-29): In prosecution of following offences Penetrative sexual assault (Sec-3) Aggravated penetrative sexual assault (Sec-5) Sexual assault (Sec-7) Aggravated sexual assault (Sec-9) Court shall presume that such person has committed the offence.

Recording of Statement during trial (Sec 33) All question to child be communicated first to the Spl Court. Child not to be called repeatedly. No aggressive questioning. Frequent breaks for the child be given.

Sec-34: If accused is Child, such child shall be dealt with under JJ Act 2000

Speedy Trial…. (Sec 35) Evidence of the child to be recorded within a period of 30 days. The trial should be completed within a period of one year.

Court may record the statement of Child through video conferencing Child not to see the accused (Sec 36) Court may record the statement of Child through video conferencing

Trials to be conducted in camera- Sec- 37 Trials to be conducted in camera- In the presence of parents or any other person in whom the child has trust Where the opinion of the court that child needs to be examined at a place other than the court, it shall proceed to issue a commission according to the provisions of CrPC.

Sec 38 Whenever necessary, the court may take the assistance of translator / interpreter/ spl. educator etc. while recording of evidence of Child during trial.

Assistance to Child by experts/legal practitioner (Sec 39 & 40) Child may take the assistance during pre-trial/ trial of the NGOs/Psychologists, etc,.

Alternate punishment & override effect of the Act (Sec 42 ) If offender found guilty of similar offences under other sections of IPC then punishment greater in degree is to be applied.

Sec-42 A POCSO Act to be in addition and not in derogation of any other law.

Public awareness of the Act (Sec 43) This is the duty of Central and State Govts. To give wide publicity through all means of communication.

Monitoring of implementations of the Act by NCPCR & SCPCR (Sec 44 & Rule 6 of POCSO Rules)

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

Thanks!!