All You Need To Know About POCSO Act (Protection of Children from Sexual Offences)

VR Associates Law Firm is one of the best law firm in Gurgaon, India to protect children against Sexual Offences and abuse. Our Advocates for Criminal cases especially for POCSO Act.

The Delhi High Court has granted bail to a 21-year-old in a case registered under Protection of Children from Sexual Offences (POCSO) Act after the prosecutrix, who was 17 years old on the date of commission of alleged offence, submitted that she is desirous of marrying him

POCSO Act, 2012 is legislation which aims at protecting children from all types of sexual abuse. Although the Convention on the Rights of the Child was adopted by the United Nations in 1989, the offences against children were not redressed by way of any legislation in India till the year 2012. 

Section 6 of the POCSO Act provides stringent deterrents for the commission of offences against children ranging from a minimum of 20 years of imprisonment to the death penalty in case of aggravated penetrative sexual assault.

POCSO Act, 2012 is divided into 46 sections. It was published in the official gazette on 20th June 2012 but came into force on 14th November 2012 which raises the question of its applicability to the cases prior to its enforcement date. 

In the case of M. Loganathan v. State (2016), the offence of rape was committed on 28.09.2012 i.e., before the Act was enforced, but the trial court convicted the accused under Section 4 of the POCSO Act. Consequently, the High Court of Madras declared that conviction being violative of Article 20(1) of the Constitution of India, 1950 was unconstitutional and it was modified to punishment under Section 376(1) of the Indian Penal Code, 1860. 

In another case of Kanha v. State of Maharashtra (2017), the accused was convicted under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act for having committed an aggravated penetrative sexual assault upon the victim which resulted in her pregnancy. The accused contended that unless there is proof of age of the foetus, the date of the commission of the offence was not in proximity with 14.11.2012 and thus, he cannot be prosecuted under Section 6 of the POCSO Act. The High Court of Bombay accepted the argument and acquitted the accused of all the charges. Therefore, it is apparent that when the applicability of the POCSO Act is questioned, the courts either alter the conviction of the accused or acquit them. 

The Act enunciates the punishment where the offences have been committed against a child. Section 2(1) (d) of the POCSO Act contains the definition of child. It states that, “a child means any person below the age of eighteen year”. This implies that offences perpetrated against anyone of the age less than eighteen years are punishable under the POCSO Act.

Importance of the POCSO Act, 2012

POCSO Act, 2012 was enacted when the cases of sexual abuse against children were rising. It contains provisions regarding the protection of children from sexual assault and pornography and lays down the procedure for the implementation of these laws. 

Incidents of sexual abuse against children occur at schools, religious places, parks, hostels, etc. and the security of children is not guaranteed anywhere. With such emerging dangers, it was significant to introduce separate legislation which could provide a reliable system for mitigating the number of such offences and punishing the perpetrators. 

The Act has been instrumental in providing a robust justice mechanism for the victims of sexual abuse and has highlighted the significance of child rights and safety. The reporting of cases of child sexual abuse has also surged as a consequence of awareness. The Act covers punishment for both non-penetrative sexual assault and aggravated penetrative sexual assault.

Features of the POCSO Act, 2012

some of the salient features of the POCSO Act are discussed as follows: 

Confidentiality of the victim’s identity: Section 23 of the POCSO Act provides for the procedure of media and imposes the duty to maintain the child victim’s identity unless the Special Court has allowed the disclosure. 

Section 23(2) states, “no reports in any media shall disclose the identity of a child including his name, address, photograph, family details, school, neighbourhood and any other particulars which may lead to the disclosure of the identity of the child”. In the landmark case of Bijoy @ Guddu Das v. The State of West Bengal (2017), the Calcutta High Court reiterated the law made under Section 23 and declared that any person including a police officer shall be prosecuted if he/ she commits such a breach. 

Gender-neutral provisions: Another glaring feature of the POCSO Act is that it does not create any distinction between the victim and the perpetrators on the basis of their gender. This overcomes one of the biggest shortcomings of the Indian Penal Code’s provisions. The definition of child includes anyone below 18 years of age and in several cases, the courts have even convicted women for engaging in child sexual abuse incidents.

Mandatory reporting of child abuse cases: Sexual abuse cases happen behind closed doors and the elders attempt to hide these incidents due to the stigma that is attached to these crimes. Consequently, for the proper implementation of the POCSO Act, reporting of these incidents by third parties who have the knowledge or apprehension of such offences, has been made mandatory under Sections 19 to 22 of the POCSO Act. These laws have been made on the basis of assumptions that children are vulnerable and helpless and society has the duty to protect the interests of the children. 

In the case of State of Gujarat v. Anirudh Singh and anr. (1997), the Supreme Court had observed that it is the duty of every citizen to aid and cooperate with investigative agencies and give information regarding the commission of cognizable offences. In various instances, schools and teachers help the child victims by reporting the sexual abuse cases to the authorities. For example, in the case of Nar Bahadur v. State of Sikkim (2016), teachers received information that her student is pregnant due to repeated sexual assaults on her by an elderly accused. The teachers informed the panchayat who lodged an FIR in the police station. 

Shankar Kisanrao Khade v. State of Maharashtra (2013) is an important case where the Supreme Court laid down guidelines regarding reporting the offence. In this case, rape was committed on an 11-year-old child with a moderate intellectual disability but it was neither reported to the police nor to the juvenile justice board. The Court observed that children with intellectual disabilities are more vulnerable and therefore, the institutions which house them have the responsibility to report sexual abuse incidents against them. Furthermore, it was laid down that non-reporting of crime in accordance with the provisions of the POCSO Act is a serious offence.

The last seen theory: The theory of last seen is applied in child sexual abuse trials. According to this theory, the person who is last seen with the victim is assumed to be the perpetrator of the offence when the time gap between the points when they were last seen alive is so minute that it is not possible that any other person could have committed the crime. In the case of Shyamal Ghosh v. State of West Bengal (2012), it was observed that when the time gap is large then it is not reasonable for the Courts to apply the last-seen theory. 

Child-friendly investigation and trial: Sections 24, 26 and 33 of the POCSO Act lays down the procedure of investigation and trial which has been formulated keeping in mind the needs of a child. The following points are taken into consideration while investigating any crime under POCSO Act: 

i. The statement of the child is to be recorded at his/ her place of residence and generally by a woman police officer.

ii. The officer who is to record the statement of the child should not be wearing a uniform.

iii. The officer should ensure that the child does not come in contact with the accused during the examination.

iv. A child is not to be detained in the police station at night.

v. The officer should ensure that the identity of the child is not revealed.

vi. The statement of the child is to be recorded in the presence of a person in whom the child has trust, for example, their parents.

vii. The statement of the child is to be recorded via audio-video electronic means.

viii. The assistance of translators or interpreters should be taken wherever necessary.

ix. Frequent breaks are to be allowed during the trial.

x. The special court has to ensure that the child is not called to repeatedly testify in the trial court.

xi. Aggressive questioning of the child is not permitted during the trial.

Overview of the POCSO Act, 2012

The POCSO Act, 2012 is comprehensive legislation containing 9 chapters dealing with the offences, punishment and procedure. 

Child sexual abuses

Penetrative sexual assault: Section 3 of the POCSO Act defines penetrative sexual assault and Section 4 lays down the punishment which was made more stringent by the 2019 amendment. 

In the case of Bandu v. The State of Maharashtra (2017), a person was committed under Sections 4 and 6 of the POCSO Act along with some provisions under the Indian Penal Code, 1860 for having committed penetrative sexual assault on a physically and mentally challenged 10-year-old girl.

In Pranil Gupta v. State of Sikkim (2015), the victim aged 15 years stayed with the accused and injuries were found in her genital area. The High Court relied on the statement of the accused that the accused opened her clothes and raped her 5 times in one night. The contention of the accused that he was not aware of the victim being a minor was not accepted and the accused was prosecuted under Section 3 of the POCSO Act. 

Aggravated penetrative sexual assault: Section 5 of the POCSO Act lays down the cases in which penetrative sexual assault amounts to aggravated penetrative sexual assault. For example, penetrative sexual assaults on a child by a police officer within the vicinity of a police station, by armed forces within the limits of their area, by a public servant, or by the staff of jails, hospitals or educational institutions are considered aggravated penetrative sexual assault and are punishable under Section 6 of the POCSO Act.

Sexual assault: Section 7 of the POCSO Act defines sexual assault as, “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”. 

In Subhankar Sarkar v. State of West Bengal (2015), on medical examination of the victim, it was found that there was no evidence of penetrative sexual assault but scratch marks on the body of the victim were found which proved the use of force and thus, the accused was convicted under Section 8 and 12 of the POCSO Act. 

Aggravated sexual assault: Sections 9 and 10 of the POCSO Act contain provisions regarding aggravated sexual assault on a child. In the case of Sofyan v. State (2017), the accused who was a plant operator in the swimming pool area was convicted by the Trial Court under Section 10 of the POCSO and Section 354 of the Indian Penal Code, 1860 for having sexually assaulted a girl of 8 years old. The facts of the case are that when the victim was wearing her swimming costume in the changing room area, the accused approached her and inserted his hand in her swimming costume and touched her with sexual intent. The Delhi High Court rejected the argument of the accused that he was implicated falsely and the conviction was upheld. 

Sexual harassment: Section 11 of the POCSO Act defines sexual harassment. It includes six instances which constitute sexual harassment of a child. 

First, if anyone utters any word or makes any sound or exhibits any object with sexual intent to a child. 

Second, if anyone makes a child exhibits his body so that it is seen by the offender or any other person. 

Third, if any person shows any child any form or media for pornographic purposes. 

Fourth, if anyone constantly watches or stalks a child directly or online. 

Fifth, if anyone threatens to use a real or fabricated depiction of any part of the body of the child or the involvement of the child in a sexual act through electronic, film or digital. 

Sixth, if anyone entices a child for pornographic purposes.

Pornography: Section 13 of the POCSO Act states that anyone who uses a child for pornographic purposes by either representing the sexual organs of the child or using a child in real or simulated sexual acts or representing a child indecently or obscenely in programmes or advertisements on television or on internet, commits the offence under this section and is liable in accordance with Sections 14 and 15 of the POCSO Act. In the case of Fatima A.S. v. State of Kerala (2020), in a video on social media, a mother was seen being painted her naked body above the navel by her two minor children and she alleged that the motive of the video was to teach sex education to them. The Supreme Court of India observed in this case that, “in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that the mother will be the window of the child’s to the world”. Hence the same was covered under Section 13. 

Punishment for offences covered in the POCSO Act, 2012

Punishment for the above offences is specified in the table:

Name of the offence Relevant provision of the POCSO Act Punishment

Penetrative sexual assault on a child of 16 to 18 years of age Section 4 Minimum imprisonment of 10 years which may extend to imprisonment for life plus fine

Penetrative sexual assault on a child below 16 years of age Section 4 Minimum imprisonment of 20 years which may extend to imprisonment for the remainder of natural life plus a fine.

Aggravated penetrative sexual assault Section 6 Minimum rigorous imprisonment of 20 years which may extend to imprisonment for the remainder of natural life plus fine or death.

Sexual assault Section 8 Imprisonment of 3 to 5 years plus fine.

Aggravated sexual assault Section 10 Imprisonment of 5 to 7 years plus fine.

Sexual harassment Section 12 Imprisonment which can extend up to 3 years plus a fine.

Use of a child for pornography Section 14(1) First conviction- imprisonment extending up to 5 years second or further convictions- imprisonment extending up to 7 years plus fine.

Use of a child for pornography while committing an offence under Section 3 Section 14(2) Minimum imprisonment of 10 years extending up to imprisonment for life plus fine.

Use of a child for pornography while committing an offence under Section 5 Section 14(3) Rigorous imprisonment for life plus fine.

Use of a child for pornographic purposes while committing an offence under Section 7 Section 14(4) Imprisonment of 6 to 8 years plus fine.

Use of a child for pornographic purposes while committing an offence under Section 9. Section 14(5) Imprisonment of 8 to 10 years plus a fine.

Offence of storing pornographic material involving a child for commercial purposes Section 15 Imprisonment of either description which may extend to three years, or with fine, or with both.

VR Associates Law Firm is one of the best law firms in Gurgaon, India to protect children against Sexual Offences and abuse. Our Advocates for Criminal cases especially for POCSO Act. Visit or Call +91- 9667714993.