Webinar Topic:

'POCSO Act and its Object'

Submitted by

Smt. D. Madhavi Krishna,

IV Additional Sessions Judge (FTC)-
Cum-Special Judge for POCSO Act, cases, KARIMNAGAR.
 The Protection of Children from Sexual Offences Act 2012
"Child abuse damages a person for life and that damage is in no way diminished by the
ignorance of the perpetrator"

Alice Miller
-A Swiss Psychologist

Statement of objects and reasons

Article 15 of the Constitution, inter-aila, confers upon the State powers to make special
provision for children. Further, Article 39, inter-alia, provides that the State shall in particular
direct its policy towards securing that the tender age of children are not abused and their
childhood and youth are protected against exploitation and they are given facilities to develop
in a healthy manner and in conditions of freedom and dignity.

The United Nations Convention on Rights of Children, ratified by India on 11th

December,1992, requires the State Parties to undertake all appropriate National, By-lateral and
Multi lateral measures to prevent (a) the inducement or coercion of a child to engage in any
unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful
sexual practices; and (c) the exploitative use of children in pornographic performances and
materials.

The data collected by the National Crime Records Bureau shows that there has been
increase in cases of sexual offences against children. This is corroborated by the ‗study on
child abuse: India 2007‘ conducted by the Ministry of Women and Child Department.
Moreover, sexual offences against children are not adequately addressed by the extent laws. A
large number of such offences are neither specifically provided for nor are they adequately
penalized. The interests of the child, both as a victim as well as a witness, need to be protected.
It is felt that offences against children need to be defined explicitly and countered through
commensurate penalties as an effective deterrence.

It is, therefore, proposed to enact a self contained comprehensive legislation inter-alia to

provide for protection of children from the sexual offences and pornography with due regard
for safeguarding the interest and well being of the child at every stage of the Judicial process,
incorporating child friendly procedures for reporting, recording of evidence, investigation and
trial of offences and provision for establishment of Special Courts for speedy trial of such
offences.

1. Object of the Act:

 The object of the Act is to protect the child from many an aspect so that he/she does not
feel a sense of discomfort or fear or is reminded of the horrified experience and further there
has to be a child friendly atmosphere.
In Alakh Alok Srivastava v. Union of India, 2018 Cri.L.J 2929 (SC) Hon‘ble Supreme Court
reiterates Object of the Act and very purpose of bringing the legislation and its provisions. It was
observed that in U.P there were 30884 and in M.P- 10117 POCSO cases pending.
Evidence stage – beyond 1 year
Instructions issued to Spl courts - speedy disposal – no unnecessary adjts.
Adequate steps – child friendly atmosphere.

2. Special Law:
For the first time, a special law has been passed to address the issue of sexual offences
against children. India is home to the largest percentage of children in the world, out of which,
about 42% are children below 18. One of the biggest evils the country is battling is Child
sexual abuse. In order to address the problem of CSA through less ambiguous and more
stringent legal provisions, the POCSO Act was formulated in June, 2012. Before passing of this
Act, sexual offences were covered under different sections of IPC, but did not provide for all
types of sexual offences against children. There was also no distinction between an adult and a
child victim. The offences have been clearly defined for the first time in law such as the
offences of sexual assault, sexual harassment and pornography.

3. An Overview:
The Act has come into force with effect from 14th November, 2012 along with the Rules
framed thereunder. It is a comprehensive law to provide for the protection of children from the
offences of sexual assault, sexual harassment and pornography; to safeguard the interests of the
child at every stage of the judicial process; for the proper development of the child in view of
his/her protection of the right to privacy and confidentiality. The Act under its ambit defines
child as a Male or Female person below 18 years (Sec. 2(d)).

4. Salient Features of the POCSO Act

 Child friendly.
 Definitions of the Child, of different forms of sexual abuse, including penetrative and
non-penetrative sexual assault and what constitutes to be ―aggravated‖ sexual assault
etc.

 Child is given police protection during the Investigative Process.

  Can avail Emergency Medical Treatment.

 Provisions for avoiding re-victimization of the child.

 Child to be given frequent breaks while deposing.

 Can testify through Video conference or by single visibility mirrors or curtains or any other device.

 The child is not to be called repeatedly to testify in court.

 In-camera trial of cases but parents of victim can be allowed.

 A case of child sexual abuse must be disposed of within one year from the date of the
offence reported.

 It provides for the Special Court to determine the amount of compensation to be paid to
the child.

 No person in any media should disclose the details regarding the identity of the child.

 The medical examination of the child should be conducted in the presence of the parent
of the child and in case of a girl child by a woman doctor.

 When there is any inconsistency between the provisions of POCSO Act and any other
Law, POCSO Act will prevail.(42.A)

5. Procedure for the Reporting of Cases: (Sec.19)

Any person who has an apprehension that an offence of child sexual abuse is likely to be
committed or knows that the offence has been committed should provide the information to the
Special Juvenile Police Unit (SJPU) or local police (Subhash Chandra Rai V. State of Sikkim
reported in 2018 Crl.J 3146). The police or the Special Juvenile Police Unit (SJPU) should
make immediate arrangements to give the child, care and protection. They should report the
matter to the Child Welfare Committee within 24 hours of receiving the complaint. Steps
should be taken to admit the child into Shelter home or to the nearest hospital within twenty-
four hours of the report.

6. Mandatory Reporting:
In line with the best international child protection standards, the Act also provides for
mandatory reporting of sexual offences. The Act casts a legal duty upon a person who has
knowledge that a child has been sexually abused, to report the offence, failing to do so attracts
a punishment of six months imprisonment and/or a fine.

7. Failure to report the case: (Sec.20)

 Any personal belonging to the media, studio, photographic facility, hotel, lodge or by
whatever name called, should provide the information, on coming to know about the object or
material known to be sexually exploitative of the child, to the Special Juvenile Police Unit
(SJPU) or local police. Failure to report or record the commission of the offence would be
punishable with six months‘ imprisonment or fine or with both.

Sec 21(2): Any person in-charge of a company or institution or by whatever name called, fails
to report, in respect of a subordinate under his control, would be punished with imprisonment
which may extend to one year and with fine.

Sec.22(1): false complaint- 6 months or fine or both.

Sec.22(2): False complaint by a child - not punishable.
In Kamal Prasad Patade V. State of Chattisgarh & Anr(2016 Crl.l.J 3759)
principal filed Writ Petition to quash charge sheet filed against him along with co- accused for
sec.21(2) of the Act for failure to report commission of offence u/sec.19(1).

Co-accused –sec.377, 511 & 506-II IPC & sec.4 &6 POCSO Act.
‗‘In the prosecution u/sec.21(2), it is necessary for the prosecution to establish first commission of
main offence u/sec.4 & 6 of the Act before making the person liable u/sec.21(2) as the prosecution has
firstly to establish beyond doubt in the jurisdictional criminal court that an offence u/sec.4 & 6 of the
Act has been committed by an accused person and once finding is recorded by the jurisdictional
criminal court convicting the accused therein for offences, then to establish the petitioner had exclusive
knowledge of such an offence having been committed by the co-accused under POCSO Act and despite
such knowledge, he failed to report the matter u/sec.19(1) of the Act to competent authority including
local police station, then only penal provision contained in sec.21(2) would attract.’’
‘’Head of the institution is entitled to and should be allowed sufficient /reasonable time to find out
the correct facts by making an enquiry at the institutional level before reporting the matter to police.’’

8. Types of Sexual Offences against children

 Penetrative sexual assault (Sec.3)

 Aggravated penetrative sexual assault (Sec.5)

 Sexual assault (Sec.7)

 Aggravated sexual assault (Sec.9)

 Sexual harassment (Sec.11)

 Using child for pornographic purposes (Sec.13)

9. Stringent Punishments:
The Act provides for stringent punishments depending upon the gravity of the offence.
The punishments range from simple to rigorous imprisonment of varying periods which extend
to life imprisonment along with the provision of fines too. The abetment of an offence under
the Act would also attract the same punishment as that of the offence committed.

10. Penetrative Sexual Assault (Sec.3) = sec.375 IPC

When a male person penetrates either his penis or any object or any part of his body or
does something to either penetrates into the private parts of the child or when he applies his
mouth to the private parts of the child or makes the child to do so either to him or to any other
person.
Sec.4- Punishment - min 10 years which may extend to life and fine.
If the offence committed on the girl below 16 years of age- mini- 20 years which may
extend to life and fine.
Sec 5: An offence is treated as ―aggravated Penetrative Sexual Assault‖ when the penetration
is committed by a person in a position of trust or authority of child such as a member of armed
or security forces, police officer, public servant, by any staff, principal or the management or
staff of the hospital or any institution and any place of custody or care or protection.
Sec.6-- Min- 20 yrs – Life
In State of Sikkim vs Amit Darjee (2016 Crl.J 523 Sikkim)
charge-sec.363 IPC; sec.3(a)r/w 4 POCSO Act.
Victim- 16 yrs.-Photostat copy of birth certificate- by chief Registrar of births & deaths. Not compared
with original. Original also available with victim. Not admissible in evidence.
Osscification test- between 17 to 18 yrs. Range of error may be up to 3 yrs on either side. Much
reliance cannot be placed on it.
No other evidence relating to age of victim. Conduct – well known to accused, voluntarily went with
accused, spend whole night, no complaint to any after incident, not raised any alarm in school premises
where sexual intercourse was performed, HELD-- she was not subjected to forceful sexual intercourse.-
- whatever happened was on her own will.

11. Sexual Assault (Sec.7) = Sec.354 IPC

Whoever with the bad intention touches the private parts of a child, be it a male or a
female child, or makes the child to do so or does any act with a sexual intent and which
involves physical contact without penetration is said to be committing Sexual Assault -
Sec.8--Punishment being not less than 3 years or may also extend to 5 years and fine.
Sec 9: ―Aggravated Sexual Assault‖ means sexual assault committed by any police officer,
armed forces, public servant, manager or staff of a hospital, jail or any institution on a child.
Sec.10: min 5 yrs to 7 yrs+fine
12. Sexual Harassment: (Sec.11) = Sec.354 A to D IPC
When any person with a sexual intent utters a word or makes any sound or gesture or
displays or exposes any part of the body, with an intention that the child would hear the sound
or sees the part of the body is said to commit the offence of Sexual Harassment. Even showing
of any porn film with any sexual intention too is an offence. Repeatedly or constantly follows
or watches or contacts a child directly or phone is punishable.
Punishment is upto 3 years with fine. (Sec.12).

13. Use of a child for pornographic purpose: (Sec.13)

whoever uses a child in any form of media for sexual gratification.
Punishment - not less than 5 years and 7 years with fine depending upon the nature of offence.

For second offence -minimum punishment - 7 years.

14. Storage of pornographic materials (Sec.15)

Any person who stores or possesses pornographic material involving a child fails to
delete, destroy, to report to concerned etc is punishable with 3 years and fine not less than
Rs.5,000/- depend on nature.

For second offence minimum 5 - 7 yrs and fine min Rs.10,000-00.

15. Abetment of an offence (Sec.16)

A person abets an offence who instigates any person to do that offence or engaging in a conspiracy;
intentionally aids; suppressing information, wilful mis represent the facts, facilitating an
offence; transporting a child etc., relating to child come under this offence.

Punishment for abetment is equitant to the punishment for that offence under this act. (Sec.17)

An attempt to commit an offence is punishable under Sec.18.

16. Procedure for recording Statement of the Child: (Sec.24)

The statement of the child to be recorded at the normal residence of the child or its choice by a
police officer preferably women.

The officer not to wear uniform while recording,

The child should not come in contact with the accused during investigation,

The identity of the child shall not be revealed.

In Nipun Saxena vs Union Of India (2019 (13) SCC 715)

sec.228A IPC – Disclosure of identity of the victim of certain offences, etc:-

(1) Whoever prints or publishes the name of any matter which may make known identity of any person
against whom an offence under sec. 376, 376A,AB, 376B, 376C, 376D, DA, DB and 376E is alleged or
found to have been committed shall be punished with imp for 2 yrs and fine.

Sec.327 Cr.P.C.: Court to be open.

(2)-- clause (1) not applicable to trial of offences under sec. 376, 376A, AB, 376B, 376C, 376D, DA, DB, and 376E.

It was held as ‗‘ A minor who is subjected to sexual abuse needs to be protected even more than a
major victim because a major victim being an adult may still be able to withstand the social
ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do
so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime
is a member of the family of the victim or a close friend. Efforts are made to hush up the crime. It is
now recognised that a child needs extra protection.
‗‘The entire purpose of the POCSO Act is to ensure that the identity of the child is not disclosed
unless the Special court for reasons to be recorded in writing permits such disclosure. This disclosure
can only be made if it is in the interest of the child and not otherwise.’’

Need to setup ONE STOP CENTRES in every dist. Like BHAROSA in Hyd.

17. Recording of the Statement by the Magistrate (Sec.25, 26)

The Magistrate shall record the statement as the child states in its language, in the presence of someone
the child trusts.

The Magistrate shall provide the police report to the child or its parents.

Presence of Advocate as required under Sec.164(1) Cr.P.C is not applicable here.

In case of mental or physical disabled child,- special educator or any person familiar with
communication of child or an expert.

Sec.26(4) of the Act empowers to record the statement of victim by audio-video electronic
means, wherever possible

In Navin Dhaniram Baraiye v. State of Maharastra (2018 Crl.J.3393 Bombay) It was held
that "this would work both ways, on the one hand it would demonstrate that the child is indeed stating
facts on his/her own volition and on the other hand it would also show whether the child victim is being
prodded or tutored by anybody to make statement before the police. This would be of assistance to the
Court while deciding the case under POCSO Act."

18. Medical examination of the Child (Sec.27)

The examination of the child shall be by a woman doctor if the victim is a girl,

The examination shall be before the parents or someone like that,

If such a person is not available, a woman nominated by Head of medical institution must be
present.
Rule: 5 : Emergency Medical Care
no requisition is necessary for rendering treatment.

19. Special Guidelines: (Sec.39)

On Interviewing a Child regarding the details of the assault, including the time and
place, frequency, description of clothing worn and so on. Interview should be conducted by a
trained professional. The interviews are forensic rather than therapeutic interviews thereby for
the purposes of being sensitive, unbiased, and truth-seeking. The purpose of the interview
would be to support accurate and fair decision-making in the criminal justice.
Sec.38: Wherever necessary the court may take assistance of qualified Translator or
Interpreter.
Mental or physical disabled child – Special educator / any person familiar with the manner of
communication of the child/ Expert.
Rule:3 : deals with Interpreters, Translators and Special educators.
DCPU in each dist maintains list of … available to police, SJPU, Spl court and Magistrate
courts.

20. Reasons for interviewing the child:

To get a picture of the child's physical and emotional state; To establish whether the
child needs urgent medical attention; To get a picture of the child's relationship with their
parents or family; to hear child's version of the circumstances leading to the concern; To find
out who the child trusts; To assure the child that he/she is now safe and would be cared for;
looked after and protected.
21. Trial and Special Courts (Sec.28)
 A Court of session shall be designated as a Special Court for trial of POCSO cases.
 There are child-friendly mechanisms for reporting, recording of evidence, investigation
and speedy trial of offences.
 The police are cast in the role of child protectors during the investigative process,
 They also have the responsibility of making urgent arrangements for the care and
protection of the child.
 It also provides for the Special Court to determine the amount of compensation to be
paid to a child,
 The Court shall presume that the person being prosecuted has committed the crime,
unless the contrary is proved.
  Similarly the Court shall presume mental culpability of the accused until the contrary is
proved.

 The accused has to prove them beyond reasonable doubt but not on the basis of
preponderance of probability.

22. Special Public Prosecutor (Sec.32)

Appoint a special prosecutor for POCSO Cases

He/she shall have 7 years of experience as an Advocate.

23. Procedure of the Court (Sec.33 to 38)

 The court may take cognizance of the offence on receiving a complaint or the police
report,

 The public prosecutor, the counsel for the accused shall put the question to the court and
the court in turn will put those questions to the child in trial,

 The examination shall be in child friendly atmosphere,

 Aggressive questions shall be avoided,

 If necessary frequent breaks to be given to the child to testify,

 The child's identity to kept undisclosed ( Subhash Chandra Rai vs State of Sikkim,
Crl.A.No. 17 of 2017 para no.26) (Sec.33(7))

 The recording of evidence of a child shall be done within 30 days of taking cognizance.

 Trial shall be completed within one year, as far as possible,

 To see that the child shall not see the accused during the proceedings,

 In the trial of case in camera proceedings to be followed, but parents

[Nipun Saxena vs Union of India (2019) 13 SCC 715]

 The child can take assistance of legal practitioner.

 In case of dispute about age of accused, Spl court can determine.

24. Presumptions as to certain offences (Sec.29)

Where a person is prosecuted for committing or abetting or attempting to commit any

offence under Secs.3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person
has committed the offences, unless contrary is proved.
 The ambit of Se.29 is quite wide and due care and precaution shall be used before
applying it to any of the cases hinted towards its unconstitutionality. A plain reading of
Section would suggest that it is beyond the normally accepted principles of criminal
jurisprudence.

In Navin Dhaniram Baraiye vs State of Maharashtra (Crl A.No.406/2017) it was held that
‗although the provision states that the Court shall presume that the accused has committed the offence,
unless the contrary is proved, the presumption would operate only upon the prosecution first proving
foundational facts against the accused, beyond reasonable doubt. Even if the prosecution establishes
such facts and the presumption is raised against the accused, he can rebut the same either by
discrediting prosecution witnesses through cross examination demonstrating that the prosecution case
is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the
presumption.‘

In Sahid Hossain Biswas Vs. State of West Bengal (2018 (1) Acquittal 311 Cal) it was held as
follows ‘however the aforesaid statutory presumption cannot be read to mean that the prosecution case
is to be treated as gospel truth in every case. The presumption does not take away the essential duty of
the Court to analyse the evidence on record in the light of the special features of a particular case eg.
patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity
between the accused and the victim giving rise to an irresistible inference of falsehood in the
prosecution casewhile determining whether the accused has discharged his onus and establised his
innocence in the given facts of the case. To hold otherwise, would compel the Court to mechanically
accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every
prosecution, howsoever, patently absurd or inherently improbable it may be.’

In Dashwanth V. State (2018 Crl.J.4226 Madras) it was observed that ‗‘ The Legislature had
foreseen the hardship and inability that child witness would face while deposing with perfection and
precision, due to shame, guilt feeling etc,on the same lines the act was committed, which is not so in the
case of adult witnesses and, therefore, the Legislature with a view to safeguard the children from such
horrid experience, had provided for the presumption under Sec.29 of the Act.’’
Other relevant judgment:- Sec.29.
Indra Kumar Pradhan V. State of Sikkim (2017 Crl.J. 4066 Sikkim).

25. Presumption of Culpable Mental State (Sec.30)

The Special Court shall presume the existence of ‗culpable mental state‘ of accused,
until contrary is proved. It is rebuttable presumption.
 In Dashwanth V. State (2018 Crl.J.4226 Madras) it was observed that ‗‘the presumption
under Sec.30 talks about the existence of mensrea or culpable mind on the part of the accused,
whenever it is so required under the provisions of POCSO Act. This culpable mental state includes
intention, motive, knowledge of a fact and the belief in or reason to believe a fact. But the Legislature
has specifically provided in Sec.30(1) itself that this is a rebuttable presumption and it is open for the
accused to prove that he was not having such intention, motive, knowledge or belief as was required to
prove the offence.’’

In Achyut Turi @ Babatu V. State of Assam (2019 Crl.J 1235 Gauhati) it was held that
‗‘the accused who was convicted for offence u/sec.6 POCSO Act , the presumption of culpable mental
state of accused is discernible and he also failed to rebut the presumption u/sec.29/30 of the Act. That
being so and there being no any discrepancy/infirmity in the prosecution case, to disregard the
testimony of the victim which inspires the confidence in the mind of the court, there is no other
conclusion than the accused is the perpetrator of the crime.’’

26. Alternate Punishment (Sec.42)

Where an act or omission constitutes an offence punishable under this Act and also
under sections 166A, 354A,B,C,D, 370, 370A, 375, 376, 376A, AB, B,C,D,DA,DB, 376E or
Sec.509 IPC, Court shall impose greater punishment.
This is against traditional concept of Criminal jurisprudence that if two punishments are
provided, then the benefit of lower punishment shall be given to the offender. The Legislature
knowingly introduced Sec.42 to protect the interests of the child. As the objects and reasons of
POCSO Act show, this Act was enacted as special provision for protection of children, with a
view to ensure that children of tender age are not abused during their childhood and youth.
1. In Rajudan Gemardan Charan v State of Maharashtra, Crl.A.No.90/2016,
Trial court -convicted- sec.376(2)(i) and 376(2)(n) IPC – R.I/ 10 yrs+ fine.each
minimum 10 yrs-- Life
Sec.4 POCSO Act- 7 yrs
min- 7 yrs – Life
same offence-- two punishments .
High Court upheld sentence for sec.376 IPC; Quashed sentence for Sec.4

2. In Bibhuti Bhusan Roy vs State of West Bengal, (2019 Crlj 1140 cal)
Trial court -convicted- sec.376(2)(f), 376(2)(f) r/w 511 and 506 IPC – Life, R.I/ 7 yrs+ fine and
6months.
Sec.4 POCSO Act- 10 yrs + fine
Sec.6 POCSO Act- Life + fine
Sec.8 POCSO Act- 3 yrs + fine
Sec.12 POCSO Act- 5 yrs + fine
sec.376(2)(f)=sec.6
Sec.376(2)(f)— min10 yrs--Life
sec.6—min 10 yrs—Life
High Court reduces Life –10 yrs/Sec.6 and 376(2)(f) IPC./major offence
No sentence for sec.4

3. In Kendrap Lepcha vs State of Sikkim (2020 SCC Online Sikkim 40)

Accused is a teacher- 5 victim school girls- below 12 yrs
Trial court- convicted – 376(2)(f)(i)&(n)-
sec.9(f),(l),(m)
no punishment- sec.5 (f),(l),(m) of POCSO Act inview of greater punishment given u/sec.376(2).

27. Compensation: (Sec.33 (8), Rule.7)

In appropriate cases, the Special Court may, in addition to the punishment direct
payment of such compensation as may be prescribed to the child for any physical or mental
trauma caused for immediate rehabilitation.
Spl Court on its own or on application by the victim recommend for compensation to be
paid by the State Govt – Victim Compensation Fund or any other scheme estd as per Sec.357A
Cr.P.C.
In Bijoy @ Guddu Das vs State of west bengal, 2017 Crl.L.J 3893 Cal
where in the accused was convicted for offence under sec.8 of POCSO Act and sentenced to undergo
R.I for 5 yrs and to pay fine Rs.5000-00. Victim is 11 yrs girl and studying 7th class. The Appellate
court has observed that as there was no criminal antecedants to the accused who was 19 yrs reduced
sentence to 3 yrs and fine Rs.10,000-00 .
It was held as ‗The compensation awarded by the Special court is to be paid by the State Govt
from the Victims Compensation Fund or other scheme or fund established by it for the purposes of
compensating and rehabilitating victims under Sec.357A Cr.P.C. or any other law for the time being in
force. And to be paid within 30 days.’
‘’Compensation envisaged under the aforesaid provision of law may be awarded by the Special
Court at the interim stage also for immediate relief and rehabilitation of a child victim in light of the
parameters laid down under Rule.7(3) of POCSO Rules. Such compensation payable by the State is
independent of the compensation which may be directed to be paid by the convict in terms of
Sec.357(2) and (3) of the Code. Compensation by the State is in the nature of a reparation to the victim
of crime on its failure to discharge its sovereign duty to protect and preserve sanctity and safety of the
individual from the ravages of such crime.’’

AGE of child:
Ms. Eera Through Dr.Manjula Krippendor vs State (Govt of NCT of Delhi) and anr (Cr. Ap. no.s
1217-1219 of 2016) where the issue emanates for consideration is to interpret definition of ‗child‘ given
u/sec.2(d) POCSO Act. Whether the child means any person below 18 yrs of age should engulf and
embrace the ‗mental age‘ of a person or the age determined by prevalent science pertaining to
Psychiatry so that a mentally retarded person or an extremely intellectually challenged person who
even has crossed biological age of 18 yrs can be included within the holistic conception of the term
‗child‘.
Appellant – suffers with ‗Cerebral Palsy‘- 38 yrs.
Mental age – 6-8 yrs. (functional age)
In Trial court- charge sheet was filed for sec.376(2)(1) IPC. Aspects of In camera; videography
of trial proceedings, absence of congenial atmosphere etc. arise before trial court which were
not able to address by it. Appellant seeks to try the case by Special court as per provisions of
POCSO Act. High Court gave certain directions accordingly. Meanwhile accused dead.
State govt was directed to pay compensation to the victim.
Concluded – that ‗‘It is only from the language of Statute that the intention of Legislature
must be gathered, for the legislature means no more and no less than what it says. It is
not permissible to the court to speculate as to what the legislature must have intended
and then to twist or bend the language of statute to make it accord with the presumed
intention of the legislature. The Parliament has deliberately fixed the age of the child
and it is in the prism of biological age and nothing else.’’
Thus sec.2(d) does not include mental age.

In Imran Shamim Khan Vs. State of Maharashtra (Crl.A.No. 936/2014)

accused was convicted for offence u/sec.6 POCSO Act – R.I 10 yrs + Fine
sec.506(ii) IPC – 1 yr+Fine
victim- 9yrs, turned Hostile to prosecution. The Hon‘ble High court observed as ‗‘In POCSO Act there
is rising trend of the victim turning hostile. It is apparent that before the trial, elder members of the
family are won over by the accused and hence, minors would turn hostile. ‘’
‘’POCSO Act is enacted with specific object, ‘’The Law should operate in a manner that the
best interest and well being of the child are regarded as being of paramount importance at every stage,
to ensure the healthy, physical, emotional, intellectual and social development of the child. Under this
Act the provisions are made to bring such instances of sexual assault on the child in the light by
protecting the victim. The object is also that the person of culpable state of mind should be punished
for harassing the child by bringing instances in the light and keep the society child friendly.’’

Notice to victim in bail applications:

Crl Law Amendment Act 2018-- provision added to Sec.439 (1)(b)Cr.P.C.
In Miss G (minor) Thr her Mother vs State of NCT of Delhi (Crl.M.C.1474/2020), the Hon‘ble
High Court at New Delhi issued Practice directions for effective implementation of 2018 amendment to
the Cr.P.C.
In sec.376(3),376-AB,376-DA or DB of IPC and cases under POCSO ACT- in Bail
applications- notice shall be issued to I.O.,or any counsel on record for the
victim/complainant/informant; I.O shall serve notice on the victim in prescribed form,
Also referred Reena Jha & Anr v Union of India (W.P.No.5011 of 2017)

Important Judgments:
1. Independent Thought V. Union of India (2017 (10) SCC 800).
2. Prahlad V. State of Rajasthan (SC) Crl. Appeal No.1794-96/2017.
3. Banoth Ravi, Warangal Dist. Vs. State of Telangana (Crl.A.No. 741/2015)
4. Polepaka Praveen @ Pavan Vs. State of Telangana (Crl.A.No. 685/2019)

Conclusion:
The POCSO Act 2012 looks into a support system for children through a friendly
atmosphere in the criminal justice system with the existing machinery ie the CWC and the
commission. The positive aspect is the appointment of the support person for the child who
would assist during investigation, pretrial, trial and post trial. The major challenge also would
be convergence between different entities under different legislations.

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