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

1. The Protection of Children from Sexual Offences Act 2012(POCSO)

2. Definitions S.2(d)- “Child” means any person below the age of eighteen years.

3. Substantive offences S.3- Penetrative Sexual Assault. A person is said to commit “penetrative sexual assault” If- (a) he penetrates his penis, to any extent, into the vagina,

4. 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

5. (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, the urethra or anus 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

6. Punishment or any other person. S.4- Punishment for such offence is imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

7. S.5-Aggravated penetrative sexual assault. Whoever, being a police officer, or a member of the armed forces or security forces or being a public servant or being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection

8. or being on the management or staff of a hospital, whether government or private, or being on the management or staff of an educational institution or religious institution commits penetrative sexual assault on a child or commits such assault in gang or by using deadly

9. weapons, fire, heated substance or corrosive substance; or causes grievous hurt or bodily injury or injury to the sexual organs of the child is said to commit aggravated penetrative sexual assault.

10. Punishment S.6- Rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

11. S.7- Sexual Assault- Any act, namely:- Touching with sexual intent vagina, penis, anus or breast of the child or makes the child touch the vagina. Causing the child to touch such parts of the body of the offender or any other person

12. Punishment c. Any other act with sexual intent involving physical touch except penetration. S.8- Imprisonment 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.

13. S.9- Aggavated sexual assault- Similar to aggaravating circumstances similar to S.5.

14. S.10- Minimum imprisonment for five years of either description which may extend to 7 years with fine.

15. S.11- Sexual Harassment- Acts done by one with sexual intent, namely:- 1. utters any word, sound, makes any gesture, exhibits any object or part of body with the intention that such word shall be heard, or such gesture shall be seen by the child or

16. 2. 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 3. Shows any object to a child in any form or media for pornographic purposes or 4. Repeatedly or constantly follows or watches or contacts a child either directly or through electronic,digital

17. or any other means or 5. 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 in a sexual act; or

18. 6. entices a child for pornographic purposes or gives gratification therefor Explanation: Any question which involves sexual intent shall be a question of fact.

19. Punishment S.12- Imprisonment upto 3 years of either description and fine.

20. S.13- Using child for pornographic purposes-Using child in media, i.e, in programmes/ advertisements telecast in television channels, internet, electronic/print form- (a) representing sexual organs of child

21. (h) Representing sexual organs of child (b) using child in real/simulated sexual acts (with or without penetration) c. Indecent/obscene representation of child

22. Punishment S.14- Punishment is imprisonment upto 5 years of either description and fine. Subsequent offence-7 years Higher penalties when associated with other offence, e.g- S.3, 5, 7 & 9.

23. Old Law New Law S.20- Obligation of media, studio, and photographic facilities to report cases Personnel of media/hotel/lodge/hospital/club or photographic facility to respondent to special juvenile unit/local police if he finds any material of

24. Old Law New Law Pornographic/sexually exploitative/obscene nature relating to a child. Punishment is imprisonment for six months or fine. S.41-Nothing in S.3-13 shall apply to medical examination or treatment of child with consent of parent or guardian.

25. Procedure of investigation, trial etc. S.19-Reporting of offences- (i) Anyone including child may report even apprehension of offence to Special juvenile police unit Local police (ii) Must be given an entry number and recorded in writing.

26. Read over to the informant, if child, in such language which he understands. Entered in a book maintained by the unit. (iii) Child, if in need of care & protection be forward to shelter home within 24 hours of report after recording reasons.

27. (iv) Report the matter within 24 hours to child welfare and special court or Court of sessions. (v) No civil or criminal liability to a person for giving information in good faith. However, information given with intention to harm reputation of any person or

28. victimise a child is punishable under Section 22

29. S.23- Procedure for media-(1) No reporting in media relating to information which may affect reputation of child or disclose his identity. Punishment is imprisonment for 1 year or fine or both.

30. Recording of statement of child (Ss 24 25 26) 1.Recording at residence by police who is not in uniform. 2. Accused must not come in contact with child during recording. 3. In presence of parents or person of trust & confidence

31. 4. Child not be kept in police station at night. 5. Police shall ensure protection of identity of child from media. 6. Magistrate shall record statement under S.164 Crpc in the actual words of the child, as far as practicable

32. 7. Translators and special educators. 8. Audio-visual recording to be made, wherever possible.

33. Medical examination of victim S.27- Medical examination of a child. To be conducted in terms of S.164A CrPc By a woman doctor, if victim is a girl. In presence of parents or person of trust of victim or a woman representation of the medical institution.

34. Trial by Special Court (Ss 28, 31-38) Court of sessions of the district- to be notified as special court. Will try other offences to be tried with offences under the act including S.67B of the Information Technology Act 2000. Special Court shall have powers of a court of session

35. 4. Would take cognizance directly upon a complaint or police report. 5. Questions to the child to be put through court. Not required to repeatedly testify in court. No aggressive questions or character assasination of child.

36. 6.Frequent breaks to be given 7. Child friendly atmosphere to be ensured- by presence of parents or person of trust. 8. Identity of child not to be disclosed. 9. Trial as in a sessions trial offence 10. Juvenility to be determined

37. by special court & proceeding shall not be invalid for erroneous determination. 11. Evidence of child to be recorded within 30 days of cognizance and trial to be completed in a year, as far as possible. 12. Assistance of translator/special educator

38. to be taken wherever possible. 13. Child not to be exposed to accused while deposing. Videoconferencing, single visibility mirrors or curtains may be used. 14. Trial shall be in camera. Commissions under S.284 CrPc may be resorted to, wherever necessary.

39. 15. Legal assistance to child through legal services authority. 16. Special Public prosecutors to be appointed of not less than 7 years of experience.

40. Statutory presumptions (Ss 29, 30) S.29- Presumption as to certain offences Persons prosecuted under the act shall be presumed guilty unless proved innocent by special court. S.30- Presumption of culpable mental state Persons charged under those

41. Offences which require the existence of such mental state, it shall be presumed unless proved otherwise by the guilty.

42. Restitution, compensation, alternative punishment Government shall prepare guidelines for use of NGO professional experts having knowledge of psychology, social work, physical and mental health at pretrial and trial stage to assist a child. If an act/omission is an offence under this Act and any other law, greater punishment as prescribed under this Act or any other law shall be awarded upon recording conviction.

43. In addition to punishment, Special Court shall direct in appropriate cases compensation to the child for any physical or mental trauma and immediate rehabilitation. Central and State Governments shall take steps for public awareness of the provisions of the Act. National Commission for Protection of Child Rights and State Commissions shall monitor the implementation of the Act.