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SUBJECT Criminology (LW 3512)

TOPIC —The Protection Of Children

From Sexual Offences Act, 2012

SUBJECT TEACHER — Ms. Susmita Priyadarshini Mishra

Submitted By;-
Name:- SWADHIN MOHAN MOHAPATRA
Roll No:- 1683120
Section:- B
Branch:- BA.LLB
The Protection Of Children From Sexual Offences Act,
2012.

Clause (3) of Article 15 of the Constitution empowers the State to make special
provisions for children. Going forward, Article 39 also contains various safeguards
for children's benefit.
To begin with, it merits no reiteration that child is God's best creation who is free
from all vices which one develops on attaining adulthood. Children like God are
innocent and nurture malice towards none. They enjoy in their own world and are free
of all greed for money, sex or anything else. This all the more necessitates their
protection and well being from all types of offenders who see them as low hanging
fruit and easily lure them on one pretext or other like offering them sweets or
chocolates or anything else which they like and then exploit them to the hilt!

Of course, the government too realized it and after a wide chorus of dissenting voices
were raised to enact a legislation for the benefit of children to protect them from being
sexually invaded, felt compelled to act in this direction. It was very strongly felt that
the existing laws such as the Indian Penal Code hardly contained any strong
provisions to protect children from being sexually harassed and offended. Various
social,children, women and other organizations have time and again highlighted how
children have been soft targets and how a new legislation was the compelling need of
the hour to protect them from all types of sexual offences as the current penal laws
failed to act as a strong deterrent against the real culprits.

Let me remind my esteemed readers here that Clause (3) of Article 15 of the
Constitution empowers the State to make special provisions for children. Going
forward, Article 39 also contains various safeguards for children's benefit. Taking all
these factors into account, the government very rightly decided to enact The
Protection Of Children From Sexual Offences Act, 2012 which in no uncertain terms
is a welcome legislation. There can be no two opinions about it. It is an Act to protect
children from offences of sexual assault, sexual harassment and pornography and very
clearly provides for the establishment of 'Special Courts' for trial of such offences and
for matters connected therewith or incidental thereto as can be read in the bare Act.

Let me also point out here that this Act received the assent of the President on June 19,
2012. It was passed by the Rajya Sabha on May 10, 2012 and by the Lok Sabha on
May 22, 2012. It came into force from November 14, 2012. I must also appreciate
here that the Act is gender neutral and very rightly so because boys too are sexually
abused on many occasions and this holds true more for those poor and economically
backward boys who work in small towns or villages in one form or the other but very
few of such dastardly incidents are ever actually reported. I am sure that if this present
Act is strictly implemented and children promptly complain against any act of sexual
offence against them without any inhibition for which all of them must be educated
and made aware of, it will go a long way in protecting them from being an easy prey
at the hands of offenders.

May I draw the kind attention of my readers here to the fact that the Government of
India had ratified the United Nations Convention on the Rights of Children on
December 11, 1992 which prescribes a set of standards to be followed by all State
parties in securing the best interests of the child and requires the State parties to
undertake all appropriate national, bilateral and multilateral measures to prevent:

the inducement or coercion of a child to engage in any unlawful sexual activity;

the exploitative use of children in prostitution or other unlawful sexual practices; and
the exploitative uses of children in pornographic performances and materials.

This all the more further made it incumbent on the Government to enact an Act which
envisaged adequate provisions for the protection of children from sexual offences,
abuse and exploitation.

It would be instructive to point out here that child has been defined in Section 2 ( d )
of this Act as any person below the age of eighteen years. Special care has been taken
in this Act to insert adequate provisions for the protection of children from the
offences of sexual assault, sexual harassment and pornography with due regard for
safeguarding the interest and well being of the child at every stage of the judicial
process. All care has also been taken to incorporate child – friendly procedures for
reporting, recording of evidence, investigation and trial of offences against children.
Provisions have also been made to establish Special Courts providing for speedy trial
of such offences affecting children and enforcing the right of all children to be
protected from all forms of sexual abuse and exploitation.

Before proceeding further, I must point out here that penetrative sexual assault has
been defined in Section 3 of the Act. It says that,: A person is said to commit
penetrative sexual assault if:

he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
child or makes the child to do so with him or any other person; or
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
he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of body of child or makes the child to do so with him
or any other person; or
he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child
to do so the such person or any other person.

Provided that where such penetrative sexual assault is committed against a child
between sixteen to eighteen years of age, it shall be considered whether the consent
for such an act has been obtained against the will of the child or the consent has been
obtained by use of violence, force, threat to use force, intoxicants, drugs,
impersonation, fraud, deceit, coercion, undue influence, threats, when the child is
sleeping or unconscious or where the child does not have the capacity to understand
the nature of the act or to resist it.

Explanation I.: For the purposes of this section:

consent means the unequivocal voluntary agreement where the person has by words,
gestures, or any form of non-verbal communication, communicated willingness to
participate in the act referred to in this section;
unequivocal voluntary agreement means willingness given for specific and be limited
to the express act consented to under this section.

Explanation II:

A child, who does not offer actual physical resistance to penetrative sexual assault is
not by reason only of that fact, to be regarded as consenting to the sexual activity.

Also, it must be pointed out here that Section 4 of the Act prescribes the punishment
for penetrative sexual assault. It provides that, Whoever commits penetrative sexual
assault shall be punished with 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. Here, I very strongly feel that this punishment is
inadequate. The punishment should be minimum 20 years and maximum death as
long as death penalty exists in the statue.

Under no circumstances can penetrative sexual assault on innocent children be ever

justified. No sexual assault of any kind against children can ever be condoned and
obviously must invite the most severe punishment under our law. We should not
forget that committing atrocity on children is the worst crime and the culprits under
no circumstances should be allowed to get away. They also must be socially
boycotted as they have done the worst crime on earth. They must be made to feel that
after committing the penetrative sexual assault on children, they too cannot escape
scot free and cock a snook at the law of the land with impunity.

I must, however, note with some degree of satisfaction that Section 6 awards stern
punishment for aggravated penetrative sexual assault. It specifically provides that:
Whoever, commits aggravated penetrative sexual assault, shall be punished with
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.

Now I must here also clarify what all constitutes aggravated penetrative sexual assault.
Section 5 which broadly spells out what all comes in the ambit of aggravated
penetrative sexual assault runs as follows:

Whoever, being a police officer, commits penetrative sexual assault on a child

within the limits of the police station or premises at which he is appointed; or
in the premises of any station house, whether or not situated in the police station, to
which he is appointed; or
in the course of his duties or otherwise; or
where he is known as, or identified as, police officer; or
Whoever being a member of the armed forces or security forces commits penetrative
sexual assault on a child:
within the limits of the area to which the person is deployed; or
in any areas under the command of the forces or armed forces; or
in the course of his duties or otherwise; or
where the said person is known or identified as a member of the security or armed
forces; or
Whoever being a public servant commits penetrative sexual assault on a child; or

Whoever 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 established
by or under any law for the time being in force, commits penetrative sexual assault on
a child, being inmate of such jail, remand home, protection home, observation home,
or other place of custody or care and protection; or
Whoever being on the management or staff of a hospital, whether Government or
private, commits penetrative sexual assault on a child in that hospital; or
Whoever being on the management or staff of an educational institution or religious
institution, commits penetrative sexual assault on a child in that institution; or
Whoever commits gang penetrative sexual assault on a child.

Explanation:

When a child is subjected to sexual assault by one or more persons of a group in

furtherance of their common intention, each of such persons shall be deemed to have
committed gang penetrative sexual assault within the meaning of this clause and each
of such person shall be liable for that act in the same manner as if it were done by him
alone; or

Whoever commits penetrative sexual assault on a child using deadly weapons, fire,
heated substance or corrosive substance; or
Whoever commits penetrative sexual assault causing grievous hurt or causing bodily
harm and injury or injury to the sexual organs of the child; or
Whoever commits penetrative sexual assault on a child, which:
physically incapacitates the child or causes the child to become mentally ill or to
become mentally unfit to perform regular tasks, temporarily or permanently; or
in the case of female child, makes the child pregnant as a consequence of sexual
assault;
inflicts the child with Human Immunodeficiency Virus or any other life threatening
disease or infection which may either temporarily or permanently impair the child by
rendering him physically incapacitated, or mentally ill to perform regular tasks; or
Whoever, taking advantage of a child's mental or physical disability, commits
penetrative sexual assault on the child; or
Whoever commits penetrative sexual assault on the child more than once or
repeatedly; or
Whoever commits penetrative sexual assault on a child below twelve years; or
Whoever being a relative of the child through blood or adoption or marriage or
guardianship or in foster care or having a domestic relationship with a parent of the
child or who is living in the same or shared household with the child, commits
penetrative sexual assault on such child; or
Whoever being, in the ownership, or management, or staff, of any institution
providing services to the child, commits penetrative sexual assault on the child; or
Whoever being in a position of trust or authority of a child commits penetrative sexual
assault on the child in an institution or home of the child or anywhere else; or
Whoever commits penetrative sexual assault on a child knowing the child is pregnant;
or
Whoever commits penetrative sexual assault on a child and attempts to murder the
child; or
Whoever commits penetrative sexual assault on a child in the course of communal or
sectarian violence; or
Whoever commits penetrative sexual assault on a child and who has been previously
convicted of having committed any offence under this Act or any sexual offence
punishable under any other law for the time being in force, is said to commit
aggravated penetrative sexual assault.
Having said this, I would now like to invite my readers attention to the fact that
Section 7 elaborates when a person is said to commit sexual assault. It stipulates that,
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. Provided that where such
penetrative sexual assault is committed against a child between sixteen to eighteen
years of age, it shall be considered whether the consent for such act has been obtained
against the will of the child or the consent has been obtained by use of violence, force,
threat to use force, intoxicants, drugs, impersonation, fraud, deceit, coercion, undue
influence, threats, when the child is sleeping or unconscious, or where the child does
not have the capacity to understand the nature of the act or to resist it.

Explanation I: For the purposes of this section:

consent means the unequivocal voluntary agreement where the person has by words,
gestures, or any form of non-verbal communication, communicated willingness to
participate in the act referred to in this section;
unequivocal voluntary agreement means willingness given for specific and be limited
to the express act consented to under this section.

Explanation II:

A child who does not offer actual physical resistance to sexual activity is not by
reason only of that fact, to be regarded as consenting to the sexual assault.

Explanation III:

Any question which involves sexual intent shall be a question of fact.

Further, Section 8 of the Act spells out the punishment for sexual assault. It states
that:
Whoever, commits sexual assault, shall be punished with imprisonment of either
description 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. Here too I feel that the minimum
punishment must be at least seven years.

It makes for most depressing reading that Section 10 which stipulates punishment for
aggravated sexual assault showers undue leniency on the perpetrators of the worst
crime. It most shockingly states that, Whoever, commits aggravated sexual assault
shall be punished with imprisonment of either description for a term which shall not
be less than five years but which may extend to seven years, and shall also be liable to
fine. In my personal capacity, I feel that the minimum punishment must be ten years
and maximum twenty and also fine which must be exemplary. Here it is imperative to
comprehend what aggravated sexual assault actually is. For this to happen, we must
read what Section 9 of the Act says. It is more or less same as that of Section 5 and
the only difference is that here the word 'penetrative' is not used.

Now here it is also pertinent to mention that while we have several times heard about
sexual harassment of women but seldom do we hear about sexual harassment of
children. This Act elaborates in detail about it. But this Act is gender neutral and in
Section 11 illustrates what all constitutes sexual harassment of children. It says that, A
person is said to commit sexual harassment upon a child when such person with
sexual intent, -

utters any word or makes any sound, or makes any gesture or exhibits any object or
part of body with the intention that such word or sound shall be heard, or such gesture
or object or part of body shall be seen by the child; or
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
shows any object to a child in any form or media for pornographic purposes; or
repeatedly or constantly follows or watches or contacts a child either directly or
through electronic, digital or any other means; or
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
entices a child for pornographic purposes or gives gratification thereof.
Let me also shed light here on the fact that Section 12 of the Act provides for
punishment for sexual harassment. It stipulates that, Whoever commits sexual
harassment upon a child shall be punished with imprisonment of either description for
a term which may extend to three years and shall also be liable to fine. I feel that the
punishment here should have been at least minimum three years and maximum five
years. Also, the maximum punishment must be awarded if the child is visibly
disturbed and feels unable to forget it.

Of late, the use of child for pornographic purposes have shown an alarming increase
and must be checked now without any more further delay. To understand that when
all can it be considered that a child has been used for pornographic purposes, it is
imperative to quote here Section 13 of the Act. It says that, Whoever, uses a child in
any form of media (including programme or advertisement telecast by television
channels or internet or any other electronic form or printed form, whether or not such
programme or advertisement is intended for personal use of for distribution), for the
purposes of sexual gratification, which includes:

representation of the sexual organs of a child;

usage of a child engaged in real or artificial simulates sexual acts (with or without
penetration);
the indecent or obscene representation of a child, shall be guilty of the offence of
using a child for pornographic purposes.
Let me also clarify here that the explanation to Section 13 further elaborates : For the
purpose of this section, the expression use a child shall include involving a child
through any medium like print, electronic, computer or any other technology for
preparation, production, offering, transmitting, publishing, facilitation and distribution
of the pornographic material.

Now coming to the point of rendering punishment to those who in any way use child
for pornographic purposes. It is here that Section 14 comes into play and spells out
punishment in different such cases.

It runs as follows:

Whoever, uses a child or children for pornographic purposes shall be punished with
imprisonment of either description which may extend to five years and shall also be
liable to fine and in the event of second or subsequent conviction with imprisonment
of either description for a term which may extend to seven years and also be liable to
fine.
If the person using the child for pornographic purposes commits an offence referred to
in Section 3, by directly participating in pornographic act, he shall be punished with
imprisonment of either description 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.
If the person using the child for pornographic purposes commit an offence referred to
in Section 5, by directly participating in pornographic acts, he shall be punished with
rigorous imprisonment for life and shall also be liable to fine.
If the person using the child for pornographic purposes commits an offence referred to
in Section 7, by directly participating in pornographic acts, he shall be punished with
imprisonment of either description for a term which shall not be less than six years
but which may extend to eight years, and shall also be liable to fine.
If the person using the child for pornographic purposes commits an offence referred to
in Section 9, by directly participating in pornographic acts, he shall be punished with
imprisonment of either description for a term which shall not be less than eight years
but which may extend to ten years, and shall also be liable to fine.

Also, I must mention here that section 15 of the Act provides that, Any person who
stores, for commercial purposes any pornographic purposes any pornographic
material in any form involving a child shall be punished with imprisonment of either
description which may extend to three years or with fine or with both.

As we see, Section 17 encapsulates the same punishment for abetment as that for
offence if the act abetted is committed in consequence of the abetment. Further,
Section 18 provides that, Whoever attempts to commits any offence punishable under
this Act or to cause such an offence to be committed, and in such attempt, does any
act towards the commission of the offence, shall be punished with 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.

Now for my readers benefit, I must point out here the elaborate procedure to be
followed for reporting of offences. On this count, it is imperative to do a thorough
study of Section 19 among others which will make the entire picture clear. Section 19
runs as follows:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of

1974), any person (including the child), who has apprehension that any offence under
this Act is likely to be committed or has knowledge that such an offence has been
committed, he shall provide such information to:
the Special Juvenile Police Unit; or
the local police.
Every report given under sub – section (1) shall be:
ascribed an entry number and recorded in writing;
be read over to the informant;
shall be entered in a book to be kept by the Police Unit.
Where the report under sub-section (1) is given by a child, the same shall be recorded
under sub – section (2) in a simple language so that the child understands contents
being recorded.
In case contents are being recorded in the language not understood by the child or
wherever it deemed necessary, a translator or an interpreter, having such
qualifications, experience and on payment of such fees as may be prescribed, shall be
provided to the child if he fails to understand the same.
Where the Special Juvenile Police Unit or local police is satisfied that the child
against whom an offence has been committed is in need of care and protection, then,
it shall, after recording the reasons in writing, make immediate arrangement to give
him such care and protection ( including admitting the child into shelter home or to
the nearest hospital ) within twenty – four hours of the report, as may be prescribed.
The Special Juvenile Police Unit or local police shall, without unnecessary delay but
within a period of twenty – four hours, report the matter to the Child Welfare
Committee and the Special Court or where no Special Court has been designated, to
the Court of Session, including need of the child for care and protection and steps
taken in this regard.
No person shall incur any liability, whether civil or criminal, for giving the
information in good faith for the purpose of sub-section (1).

Matters don't end just here only. Section 20 further imposes obligation on many to
report cases. It states that, Any personnel of the media or hotel or lodge or hospital or
club or studio or photographic facilities, by whatever name called, irrespective of the
number of persons employed therein, shall, on coming across any material or object
which is sexually exploitative of the child (including pornographic, sexually – related
or making obscene representation of a child or children) through the use of any
medium, shall provide such information to the Special Juvenile Police Unit, or to the
local police, as the case may be.

Now let us come to the next point that is about various punishments. Section 21
enumerates punishment for failure to report or record a case. It explicitly states that:

Any person, who fails to report the commission of an offence under sub-section (1) of
Section 19 or Section 20 or who fails to record such offence under sub – section (2) of
Section 19 shall be punished with imprisonment of either description which may
extend to six months or with fine or with both.'
Any person, being in-charge of any company or an institution (by whatever name
called) who fails to report the commission of an offence under sub – section (1) of
Section 19 in respect of a subordinate under his control, shall be punished with
imprisonment for a term which may extend to one year and with fine.
The provisions of sub – section (1) shall not apply to a child under this Act.

It also must be pointed out here that while Section 22 provides for punishment for
making false complaint or false information but children have been granted
exemption from it which is a welcome provision. This Act is for the benefit of
children and not for punishing them. No one will certainly dispute this. Section 22
states that:

Any person, who makes false complaint or provides false information against any
person, in respect of an offence committed under Sections 3, 5, 7 and Section 9, solely
with the intention to humiliate, export or threaten or defame him, shall be punished
with imprisonment for a term which may extend to six months or with fine or with
both.
Where a false complaint has been made or false information has been provided by a
child, no punishment shall be imposed on such child.
Whoever, not being a child, makes a false complaint or provides false information
against a child, knowing it to be false, thereby victimizing such child in any of the
offences under this Act, shall be punished with imprisonment which may extend to
one year or with fine or with both.

It is most heartening to note that this Act prescribes certain guidelines for media also
to follow. Media has to be very careful while reporting any case affecting any child's
reputation or which violates his/her privacy in any manner. If those in media fail to
follow the prescribed norms, they would have to face the music. Here it is very
pertinent to know what all provisions have been made on this score for the media. On
this count, it is imperative to take a cursory glance at what Section 23 stipulates. It
says that:

No person shall make any report or present comments on any child from any form of
media or studio or photographic facilities without having complete and authentic
information, which may have the effect of lowering his reputation or infringing upon
his privacy.
No reports in any media shall disclose, the identity of a child including his name,
address, photograph, family details, school, neighbourhood or any other particulars
which may lead to disclosure of identity of the child. Provided that for reasons to be
recorded in writing, the Special Court, competent to try the case under the Act, may
permit such disclosure, if in its opinion such disclosure is in the interest of the child.
The publisher or owner of the media or studio or photographic facilities shall be
jointly and severally liable for the acts and omissions of his employee.
Any person who contravenes the provisions of sub – section (1) or sub – section (2)
shall be liable to be punished with imprisonment of either description for a period
which shall not be less than six months but which may extend to one year or with fine
or with both.

It merits no reiteration that a lot of precautions must be taken while recording a

statement of a child. No undue pressure of any kind must be inflicted on the child by
anyone while recording their statement. It would be noteworthy to bring out here what
Section 24 of the Act says. It states that:

The statement of the child shall be recorded at the residence of the child or at a place
where he usually reside or at the place of his choice and as far as practicable by a
woman police officer not below the rank of sub-inspector.
The police officer while recording the statement of the child shall not be in uniform.
The police officer making the investigation, shall, while examining the child ensure
that at no point of time the child comes in the contact in anyway with the accused.
No child shall be detained in the police station in the night for any reason.
The police officer shall ensure that the identity of the child is protected from the
public media, unless otherwise directed by the Special Court in the interest of the
child.

Provisions have also been made in Section 26 of the Act to ensure that the Magistrate
or the police officer, as the case may be, shall record the statement in the presence of
either the parents of the child or any other person in whom the child has confidence or
trust and wherever necessary take the assistance of a translator or interpreter with due
qualification and experience on payment of prescribed fees while recording the
statement of the child. It has also been provided that in case of a child having mental
or physical disability, the Magistrate or police officer may seek the assistance of a
special educator or any person familiar with the manner of communication of the
child or an expert in that field with the requisite qualifications and experience and on
payment of prescribed fees to record the statement of the child. Section 26 further
makes it clear that wherever possible, the Magistrate or the police officer, as the case
may be, shall ensure that the statement of the child is also recorded by audio – video
electronic means.

Section 27 pertains with the medical examination of the child who is a victim of any
sexual offence. It stipulates that:

The medical examination of a child in respect of whom any offence has been
committed under this Act, shall, notwithstanding that a First Information Report or
complaint has not been registered for the offence under this Act, be conducted in
accordance with Section 164A of the Code of Criminal Procedure, 1973 (2 of 1974).
In case the victim is a girl child, the medical examination shall be conducted by a
woman doctor.
The medical examination shall be conducted in the presence of the parent of the child
or any other person in whom the child reposes trust or confidence.
Where, in case the parent of the child or other person referred to in sub-section (3)
cannot be present, for any reason, during the medical examination of the child, the
medical examination shall be conducted in the presence of a woman nominated by the
head of the medical institutions.

Now it is about time that I discuss about the Special Courts which shall try all sexual
offences affecting children. Section 28 dwells upon the designation of Special Courts.
It states that:

For the purposes of providing a speedy trial, the State Government shall in
consultation with the Chief Justice of the High Court, by notification in the official
gazette, designate for each district, a Court of Session to be a Special Court to try the
offences under the Act :

Provided that if a Court of Session is notified as a Children's Court under the

Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court
designated for similar purposes under any other law for the time being in force, then,
such court shall be deemed to be a Special Court under this Section.

While trying an offence under this Act, a Special Court shall also try an offence
( other than the offence referred to in sub – section {1} ), with which the accused may,
under the Code of Criminal Procedure, 1973 ( 2 of 1974 ), be charged at the same
trial.

The Special Court constituted under this Act, notwithstanding anything contained in
the Information Technology Act, 2000 ( 21 of 2000 ), shall have jurisdiction to try
offences under Section 67B of that Act in so far as it relates to publication or
transmission of sexually explicit material depicting children in any act, or conduct or
manner or facilities abuse of children online.

Section 29 talks about presumption as to certain offences in these words : Where a

person is prosecuted for committing or abetting or attempting to commit any offence
under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that
such person has committed or abetted or attempted to commit the offence, as the case
may be unless the contrary is proved.

Section 30 incorporates that in any prosecution for any offence under this Act which
requires a culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state but it shall be a defence for the accused to
prove the fact that he had no such mental state with respect to the act charged as an
offence in that prosecution. Also, a safeguard has been inserted in sub-section (2) of
Section 30. It says that, For the purposes of this section, a fact is said to be proved
only when the Special Court believes it to exist beyond reasonable doubt and not
merely when its existence is established by a preponderance of probability.

The next major Section is 33 which dwells upon the procedure and powers of Special
Court. It is very important to understand this Section as it provides redressal to
children who are victim of sexual offences. Section 33 runs as follows

A Special Court may take cognizance of any offence, without the accused being
committed to it for trial, upon receiving a complaint of facts which constitute such
offence, or upon a police report of such facts
The Special Public Prosecutor, or as the case may be, the counsel appearing for the
accused shall, while recording the examination – in – chief, cross – examination or re
– examination of the child, communicate the questions to be put to the child to the
Special Court which shall in turn put those questions to the child.
The Special Court may, if it considers necessary, permit frequent breaks for the child
during the trial.
The Special Court shall create a child-friendly atmosphere by allowing a family
member, a guardian, a friend or a relative, in whom the child has trust or confidence,
to be present in the court.
The Special Court shall ensure that the child is not called repeatedly to testify in the
court.
The Special Court shall not permit aggressive questioning or character assassination
of the child and ensure that dignity of the child is maintained at all times during the
trial.
The Special Court shall ensure that the identity of the child is not disclosed at any
time during the course of investigation or trial :

Provided that for reasons to be recorded in writing, the Special Court may permit such
disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation: For the purposes of this sub – section, the identity of the child shall
include the identity of the child's family, school, relatives, neighbourhood or any other
information by which the identity of the child may be revealed.
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 to him or for immediate rehabilitation of such child.
Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial
of any offence under this Act, have all the power of a Court of Session and shall try
such offence as if it were a Court of Session, and as far as may be, in accordance with
the procedure specified in the Code of Criminal Procedure, 1973 ( 2 of 1974 ) for trial
before a Court of Session.
Attention is invited of my esteemed readers to the fact that Section 34 deals with the
procedure in case of commission of offence by child and determination of age by
Special Court. It stipulates that:

Where any offence under this Act is committed by a child, such child shall be dealt
with under the provisions of the Juvenile Justice (Care and Protection of Children )
Act, 2000 (56 of 2000).
If any question arises in any proceeding before the Special Court whether a person is
a child or not, such question shall be determined by the Special Court after satisfying
itself about the age of such person and it shall record in writing its reasons for such
determination.
No order made by the Special Court shall be deemed to be invalid merely by any
subsequent proof that the age of person as determined by it under sub – section ( 2 )
was not the correct age of that person.

Section 35 further envisages the period of recording of evidence of child and disposal
of case. It lays down that:

The evidence of the child shall be recorded within a period of thirty days of the
Special Court taking cognizance of the offence and reasons for delay, if any, shall be
recorded by the Special Court.
The Special Court shall complete the trial, as far as possible, within a period of one
year from the date of taking cognizance of the offence.

I must also point out here that Section 36 clearly prohibits child not to see the accused
at the time of testifying. This provision has been inserted basically so that a child is
not cajoled or influenced in any manner to retract from what he/she is about to testify.
It states that:
The Special Court shall ensure that the child is not exposed in any way to the accused
at the time of recording of the evidence, while at the same time ensuring that the
accused is in a position to hear the statement of the child and communicate with his
advocate.
For the purpose of sub-section (1), the Special Court may record the statement of a
child through video conferencing or by utilizing single visibility mirrors or curtains or
any other device.
Section 37 catapulates that the Special Court shall try cases in camera and in the
presence of the parents of the child or any other person in whom the child has trust or
confidence provided that where the Special Court is of the opinion that the child needs
to be examined at a place other than the court, it shall proceed to issue a commission
in accordance with the provisions of Section 284 of the Code of Criminal Procedure,
1973 (2 of 1974).

Also, Section 38 basically provides that the Court may take assistance of an
interpreter or expert while recording evidence of child wherever necessary and if a
child has a mental or physical disability, the Special Court may take assistance of a
special educator or any person familiar with manner of communicating of child or an
expert in that field.

Section 39 provides that the State Government shall prepare guidelines for use of non
– governmental organizations, professionals and experts or persons having knowledge
of psychology, social work, physical health, mental health and child development to
be associated with the pre – trial and trial stage to assist the child. Section 40 inserts
that subject to the proviso to Section 301 of the CrPC, 1973 ( 2 of 1974 ) the family or
their guardian of the child shall be entitled to the assistance of a legal counsel of their
choice for any offence under this Act provided that if the family or the guardian of the
child are unable to afford a legal counsel, the Legal Services Authority shall provide a
lawyer to them.

It is imperative to understand here what this Act says in terms of alternative

punishment as provided in Section 42 of the Act. It says that, Where an act or
omission constitute an offence punishable under this Act and also under any other law
for the time being in force, then, notwithstanding anything contained in any other law
for the time being in force, the offender found guilty of such offence shall be liable to
punishment only under such law or this Act as provides for punishment which is
greater in degree.

Now coming to Section 43, it speaks about spreading public awareness about Act. It
states that, The Central Government and every State Government, shall take all
measures to ensure that:

the provisions of this Act are given wide publicity through media including the
television, radio and the print media at regular intervals to make the general public,
children as well as their parents and guardians aware of the provisions of this Act;
the officer of the Central Government and the State Government and other concerned
persons ( including the police officers ) are imparted periodic training on the matters
relating to the implementation of the provisions of the Act.
The last important Section in this Act is 44 which pertains to monitoring of
implementation of Act. It states that:
The National Commission for Protection of Child Rights constituted under Section 3,
or as the case may be, the State Commission for Protection of Child Rights
constituted under Section 17, of the Commissions for Protection of Child Rights Act
2005 ( 4 of 2006 ), shall, in addition to the functions assigned to them under that Act,
also monitor the implementation of the provisions of this Act in such manner as may
be prescribed.

The National Commission or, as the case may be, the State Commission, referred to in
sub – section (1), shall, while inquiring into any matter relating to any offence under
this Act, have the same powers as are vested in it under the Commissions for
Protection of Child Rights Act, 2005 (4 of 2006)

The National Commissions or, as the case may be, the State Commission, referred to
in sub – section ( 1 ), shall also include, its activities under this section, in the annual
report referred to in Section 16 of the Commissions for Protection of Child Right Act,
2005 ( 4 of 2006 )

While on the one hand, I truly appreciate the major provisions inserted in this Act to
save the vulnerable children from sexual offences, at the same time, I also firmly
believe that the real part is in implementing it in letter and spirit and not just on papers
alone. For this to happen effectively, the police must be made more accountable and
they must lodge an FIR promptly against anyone against whom the child alleges of
indulging in any kind of sexual offences. The earlier this happens on ground and not
just on papers, the more effective this Act will prove to be in protecting the children
from sexual offences.

All said and done, this Act is a welcome legislation overall and needs to be
implemented strictly and uniformly to make ensure that children are protected from
all kinds of sexual offences and those indulging in any kind of offences as specified in
this Act are made to face the music for it and not flee away through any escape route
by exploiting any kind of loophole for their own benefit. Then alone will it serve the
purpose for which it is created specially.
The Protection Of Children From Sexual Offences Act,
2012[https://www.legalservicesindia.com/law/article/2239/17/The-Protection-Of-
Children-From-Sexual-Offences-Act-2012-Is-A-Welcome-Legislation?id=2239&
u=17]