POCSO Act 2012: An Overview

What is the POCSO Act?

POCSO Act stands for the ‘PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (Act No. 32 of 2012)

POCSO Act, 2012 to comprehensively deal with the issue of sexual offences against children. Child means a person under the age of 18 years, This Act is gender-neutral. That means the victim can be a girl or boy under the age of 18 years. Similarly accused can be a man or woman.

Some of the main features of this Act are the following:

1. Confidentiality of the victim’s identity (Section 23)
2. Gender-neutral provisions
3. Mandatory reporting of child abuse cases
4. Child-friendly investigation and trial

What is the scope of the POCSO Act?

The Act deals with three types of provisions:

• 1. It provides offences against children;
• 2. It provides stringent punishment for those offences;
• 3. Set out a system for support of victims and improve methods for catching offenders.

In India, POCSO Act, 2012 is not the only legislation which deals with child sexual abuse cases. The POCSO Act cannot be called a complete code in itself and provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap and encapsulate the procedure and specify the offences.

What offences are constituted by POCSO Act, 2012?

• 1. Sexual Assault
• 2. Penetrative sexual assault
• 3. Aggravated sexual assault
• 4. aggravated penetrative sexual assault
• 5. Using children for pornography
• 6. Lack of mandatory reporting of the offence
• 7. False cases
• 8. Disclosing the confidentiality of the victim

Sr no	offences	Aggravated form	Punishment
1.	Sexual Assault (s. 7) With sexual intent (exclude the penetrative assault): 1. to touch the private parts of a child, or 2. to make a child touch the private parts of another person, or	In the following cases the offence of sexual assault or penetrative sexual assault becomes aggravated: (s. 5,  6, 9)   1. where the offence is committed by any of the following:   i. a police officer.   ii. by a member of the armed forces or security forces   iii. by a public servant   iv. by a person on the management or staff of a fail, remand home, protection home, or other place of custody or care   v. by a person on the management or staff of any hospital (private or government) on a child in that hospital.   vi. by a person on the management or staff of an educational institution or religious institution on a child in that institution.   v. by a relative or by a person who is living in the same or shared household with the child.   vi. by the owner or someone on the management or staff of any institution providing services to the child.   vii. by a person in a position of trust or authority.   2. Gang assault i.e. by one or more persons of a group.   3. The offence is committed using dangerous weapons or causing physical harm to the child, or trying to kill the child.   4. The offence committed causes the child to become physically or mentally disabled, or inflicts the child with HIV or any other threatening disease or infection.   5. The offense is committed on a child with physical or mental disability.   6. repeatedly committed the offence   7. The offence is committed on a child below 12 years of age.   8. The offence is committed on a child known to be pregnant.   9. The offence is committed in the course of communal or sectarian violence.   10. The offence is committed by a repeat offender (i.e. a person who has been previously convicted of an offence under POCSO or for any sexual offence under any other law).	3-5 years imprisonment and fine.   Punishment for committing aggravated sexual assault on a child is 5 years- 7 years imprisonment, and fine
2.	Penetrative sexual assault: (s. 3) With the sexual intent: 1. insert an object or a part of a body into the child, or make the child do so with him  or any person; or 2. Applying one’s mouth into vagina, mouth, anus or urethra of a child. Or make the child do so with him or any other person.		7 yrs- life imprisonment and fine     For aggravated penetrative sexual assault minimum of 10 years of rigorous imprisonment which can extend to life imprisonment and a fine     Note: (the general rule is that special law prevails on general rule, the POCSO provides a special exemption)   If any offence is cover under POCSO Act as well as in IPC then higher punishment will be imposed.  For example- the punishment has been increased in case of rape under the IPC and the higher punishment will apply even in offence under POCSO. The higher punishment is as follows: For penetrative sexual assault on a girl child by a man the punishment is minimum of ten years imprisonment which may extend to life imprisonment plus fine.   For aggravated penetrative sexual assault on a girl child by a man the punishment till the remainder of the person’s natural life.   For penetrative assault on a girl child less than 16 years of age by a man, the punishment is minimum imprisonment for twenty years which can be extended to life imprisonment plus fine. Life imprisonment means punishable till the remainder of the person’s natural life. The fine imposed must be reasonable to meet the medical and rehabilitation expenses of the victim and must be paid to the victim.   For penetrative assault on a girl child less than 12 years of age by a man the punishment is minimum imprisonment of 20 years which may increase to life plus fine or death. Life imprisonment means punishment till the remainder of the person’s natural life. The fine imposed must be reasonable to meet the medical and rehabilitation expenses of the victim and must be paid to the victim.   For penetrative assault on a girl child by a man which inflicts and injury on the child which cause death or causes a woman to be in a vegetative state the punishment will be minimum imprisonment for a  period of 20 years and which may extend to life or with death. Life imprisonment means punishment till the remainder of the person’s natural life.   For gang rape of a girl child the punishment is minimum imprisonment for a term of 20 years or which may extend to life plus fine. Life imprisonment means punishment till the remainder of the person’s natural life. The fine imposed must be reasonable to meet the medical and rehabilitation expenses of the victim and must be paid to the victim.     For gang rape of girl child less than 16 years of age the punishment is life imprisonment which will be for the reminder of natural life or the person plus fine.     For gang rape of girl child less than 12 years of age the punishment is life imprisonment which will be for the remainder of the convict’s natural life of the person, plus fine or with death.
3.	Sexual harassment (s. 11) With sexual intent: 1. utter any word or makes any sound so as to be heard by the child   2. makes any gesture or exhibits any object or part of body so as to be seen by the child   3. Make the child exhibit his or her body   4. shows anything to the child for pornographic purposes   5. repeatedly or constantly follows or  watches or contacts the child either directly or through electronic or other media   6. threatens to use in any media a real or fake depiction of any part of the body of the child, or the involvement of the child in sexual act   7. Entices the child for pornographic purposes.		Imprisonment for up to 3 years, as well as payment of fine.
4.	Using child for pornography (s. 13) Storage of pornographic material   Using child in any form of media (e.g. television channels, internet, etc.) for the purpose of sexual gratification amount to the offence of using a child for pornography.   Sexual gratification includes: 1. showing the sexual organs of a child   2. Using a child in real or simulated sexual acts with or without penetrative sexual assault.   3. showing a child in an indecent or obscene way   It does not matter whether this is done for personal use or for public consumption.		The punishment is imprisonment for up to 5 years, and fine.   If the offence is repeated, the term of imprisonment can be increased to 7 years.   Storing for commercial purposes any pornographic material involving a child is punishable with imprisonment which may extend to 3 years and fine.
5.	Mandatory reporting of the offence Any person can report an offence under POCSO. An offence can be reported after it has occurred, or even before it has occurred, if there is fear that such a crime may occur.   The child facing or fearing such abuse can also report the crime directly.   What is important is the crime must be reported.		If a person fail to report an offence under POCSO, the person can be punished with imprisonment of up to 6 months and/or with fine.   If a person is in charge of an institution and fails to report an offence under POCSO committed by a subordinate, the person can be punished with imprisonment of up to 1 years and/or with fine.   The duty also extends to people working in any media, hotel, lodge, hospital, club or studio. If they come across anything that is sexually exploitative of the child in any way they must report it to the special juvenile police unit or the local police.   It is not necessary for a child to report a crime.
6.	Abetment of offence(s. 16)		if the act abetted is Committed in consequence of the abetment, shall be punished with punishment provided for that offence.
7.	attempt to commit an offence (s. 18)		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.
8.	Failure to inform about the authority (s. 19)		imprisonment of either description Which may extend to six months or with fine or with both. (s. 21)
9.	False cases (s. 22) A person who makes a false complaint or gives false information regarding on offence under POCSO		Can be imprisoned for up to 6 months and/or be made to pay a fine.   If such false complaint or false information is given against a child, the punishment can go up to 1 year of imprisonment   But a false complaint or false information is provided by a child, the child cannot be punished under the law.
10.	Revealing privacy of the child		Imprisonment between 6 months and 1 year in jail, and/or fine.

Note:

When a person is giving punishment of imprisonment for life, usually after 14 years in prison the government may release the convict saying he has completed his term of punishment. But in cases where the law says that the punishment is for the natural life then the person cannot be released after 14 years and he will have to remain in prison till he die.  

What provisions are embedded in the POCSO Act regarding confidentiality?

If a sexual offence has occurred or might occur against a child, any person (including the child) can report this to the special juvenile police unit or the local police.

No one should make any report or make any comments on any child in any form of media without having full and accurate information, if such report or comments may have the effect of lowering the child’s reputation or invading the child’s privacy.

There are also no media reports revealing the identity of the child. Thus there can be no showing a child’s photograph or mentioning the child’s name, address, family details, neighbourhood, or any other details that can lead to the identity of the child.

What are the duties regarding reporting any offence against a child under the POCSO Act?

Reporting the offence to the police

If the child requires treatment or care and protection, the special juvenile police unit (SJPU) or the local police must take the child to the hospital or shelter home within 24 hours of the report. They must also inform the child welfare committee and the special court.

How statement of a child victim to be recorded under the POCSO Act, 2012?

When an offence under POCSO is reported, the child’s account of the event (i.e. the child’s statement) should be recorded by the magistrate or the police officer in the words of the child, or as spoken by the child. The statement should be recorded in the presence of the parents of the child, or in the presence of any other person whom the child trusts.

The statement should preferably be recorded by a woman police officer, not in uniform. It is better if the statement is taken in the child’s house, or in some place where the child is comfortable.

Where necessary, the help of a translator or interpreter should be taken, so that there is no gap in communication.

If the child has a physical or mental disability and needs assistance in communication, the help of a special educator or some other suitable expert in the field of disability should be taken.

The child should be made to feel as comfortable as possible, and given frequent breaks during the process. To the extent possible, the statement of the child should be recorded by audio-visual electronic means.

What are the provisions for medical examination of the child under this Act?

• The child will also be medically examined. This should be done as soon as possible. It can be done at the very first instance it comes to light, without having to wait for the formal recording of a complaint or first information report.
• Girl children should be examined only by a woman doctor.
• The medical examination of any child should be done only in the presence of the parents of the child, or in the presence of some other person whom the child has trust in.
• If the parents or such trusted person cannot be found, the hospital should ensure that some woman is present at the examination.

What are the special provisions for the trial of cases under the POCSO Act?

For speedy justice and to avoid the re-victimization of the child, cases are to be tried in special courts with special public prosecutors. The trial must be held in camera (i.e. in private, and not in open court where the public can view proceedings), and without revealing the identity of the child.

The special court must be child-friendly. The court may take the assistance of a translator or interpreter in recording the statement of the child. If a child has a mental or physical disability, the special court may take assistance of a special educator or any person familiar with the manner of communication of the child or an expert in the field.

What is the Rule of evidence in POCSO cases?

The general rule is that the court shall assume that the accused is innocent and the prosecution has to prove that the accused is guilty.

• But if a penetrative sexual assault, aggressive penetrative sexual assault, sexual assault or aggressive sexual assault is evident, the court will presume that the accused is guilty. The accused will have to prove innocence.
• Cases under POCSO must be disposed of within one year from the date the offence is reported.
• Apart from the punishment of the perpetrator, the special court can also give directions for payment of compensation to the child. 

What is the time limit for the disposal of cases under the POCSO Act?

Section 35 of the POCSO Act stipulates the following timelines:

1. For recording the evidence of the child: 30 days from the date of taking cognizance of the offence,
2. For completing the trial: 1 year from the date of taking cognizance of the offence.

What was the need of the POCSO Act?

Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004.  Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377. These provisions neither protect male children from sexual abuse nor protect their modesty. Also, definitions of the terms like ‘modesty’ and ‘unnatural offence’ are not provided in the Code.

Owing to the lack of any specific legislation, it was pivotal to establish a statute that pointedly tackles the issue of growing child sexual abuse cases in the country. With the efforts of multifarious NGOs, activists and the Ministry of Women and Child Development, POCSO Act, 2012 was enforced on 14th November 2012.

• Date of enactment: 19th June 2012
• Date of enforcement: 14 November 2012
• Date of last amendment: 28.02.2023
• Chapter- IX
• Number of Section- 46
• The schedule- list of armed forces and security forces as mentioned in section 2(c)