The Protection of Children from Sexual Offences Act, 2012

Jurisprudential Essence -
-The Act is a special piece of legislation which derives its origin from Article 15(3) of The
Constitution of India. Article 15(3) is an extension of right to equality and enables the
legislature to make special provision for women and children.
- The Act is an attempt to achieve the object enshrined under Article 39 of the Constitution
which is a part of Directive Principles of State Policy. Article, 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.
- India has ratified The United Nations Convention on the Rights of Children which requires
the ratifying states to take measures so as to prevent the children from being exploited for
sexual purposes, prostitution and pornographic performances and materials.
-The data collected by NCRB shows that there has been increase in cases of sexual offences
against children which clarifies that the existing laws are unable to protect children from
sexual offences adequately. Therefore, a special statute was required to define offences
against the vulnerable section of the society i.e. children and provide proportionate
punishment for their violation so as to create deterrence in the society.

Applicability of POCSO – Whether retrospective or prospective?

In the case of Mangal v. State of Chhattisgarh, (HC), it was clarified that POCSO cannot
have a retrospective application as it is an elementary principle of law that no penal statue can
be given ex-post facto effect i.e. it cannot have a retrospective effect unless the said statute
specifically and in clear language gives itself a retrospective application.

Issue – Whether the POCSO Act is exhaustive?

NO. Reference can be made to -
-Section 2(2) (Doctrine of incorporation by reference)
-Section 42
-Section 42-A
Definition Clause -
Section 2(d) – “child” means any person below the age of eighteen years.
ISSUE – Whether the word “age” refers to chronological age or mental age for the
purpose of determining if a person is a child?
In the case of Eera v. State (NCT of Delhi), 2017 SC, the Hon’ble Supreme Court
acknowledged this issue and held that departure from chronological age on basis of maturity
of understanding/mental age of child is not permissible. Parliament has felt it appropriate that
definition of term “age” by chronological or biological age to be safest yardstick than
referring to person having mental retardation which may be due to the fact that standards of
mental retardation are different which require determination by expert body and degrees are
also different. POCSO Act has identified minors and protected them by prescribing statutory
age which has nexus with legal eligibility to give consent. Parliament has not included
“mental age” which was within legislative domain. In such situation, to include perception of
mental competence of victim or mental retardation as factor would tantamount to causing
violence to legislation which is impermissible.
Moreover, the term “year” has been defined under section 3(66) of The General Clauses Act,
1897 as -“year” shall mean a year reckoned according to the British calendar. This definition
when read with the word “age” under section 2 of POCSO clarifies that the “age” has be to
chronological age and not mental age.

ISSUE – What is the procedure for determining the age of the child for the purposes of
POCSO Act?
Since the Act is silent as to the procedure for determining the age of the child for the purpose
of the Act, the Hon’ble Supreme Court in the case of Jarnail Singh v. State of Haryana,
2013 SC clarified that for the purposes of POCSO the same procedure as prescribed under
the Juvenile Justice Act would be followed.
Therefore, now when THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015 is applicable the age of the child will be determined by the court by
following the same procedure as followed by the Committee/Board under section 94 of The
JJ Act, 2015.
Section 94 - (1) Where, it is obvious to the Committee or the Board, based on the appearance
of the person brought before it under any of the provisions of this Act (other than for the
purpose of giving evidence) that the said person is a child, the Committee or the Board shall
record such observation stating the age of the child as nearly as may be and proceed with the
inquiry under section 14 or section 36, as the case may be, without waiting for further
confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the Committee or the Board, as the case may be,
shall undertake the process of age determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate
from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification
test or any other latest medical age determination test conducted on the orders of the
Committee or the Board: Provided such age determination test conducted on the order of the
Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought
before it shall, for the purpose of this Act, be deemed to be the true age of that person.

ISSUE – Whether consent of victim child for the impugned sexual act under POCSO
would absolve the liability of the accused?
For the purposes of POCSO consent of a child is immaterial. The accused cannot take a plea
that the offence was committed with the consent of the victim child. In fact, in the case of
Satish Kumar Jayanti Lal v. State of Gujarat, 2015 SC, the Hon’ble SC clarified that the
consent of child cannot be considered as a mitigating circumstance while determining the
liability of the accused. In a heinous and abhorrent crime of sexual assault if consent of minor
is treated as mitigating circumstance, it may lead to disastrous consequences particularly in
view of POCSO Act.

TABLE OF PUNISMNET -

Section 4 – Punishment for -Either Description – Not less than 10 years but may extend
penetrative sexual assault to life imprisonment + fine
-Victim child below 16 years- Either Description – Not less
than 20 years but may extend to life imprisonment + fine
Section 6 – Punishment for -Rigorous Imprisonment – Not less than 20 years but may
aggravated penetrative sexual extend to life imprisonment or with death + fine
assault
Section 8 – Punishment for - Either Description – Not less than 3 years but may extend
sexual assault to 5 years + fine
Section 10 – Punishment for - Either Description – Not less than 5 years but may extend
aggravated sexual assault to 7 years + fine
Section 12 – Punishment for - Either Description- Up to 3 years + fine
sexual harassment

ISSUE – Whether skin to skin contact is mandatory for the offence of Sexual Assault
under section 8 of POCSO Act?
In the case of Attorney General of India v Satish and Another, 2021 SC, an appeal was
filed against the judgement of the Bombay High Court wherein the High Court held that for
an offence of sexual assault skin to skin touch is mandatory and therefore the HC acquitted
the accused from the charges of sexual assault under section 8 of the POCSO Act who
pressed the breasts of the victim from over her clothes.
The Hon’ble Supreme Court while overruling the judgement of the Hon’ble High Court
observed that while interpreting a statute, such a construction has to be adopted which
promotes the object of the legislation and prevents its possible abuse. The Court also
observed that the POCSO Act was enacted to prevent children from sexual assault, sexual
harassment and pornography. The court noted how equating the requirements of ‘touch’ and
‘physical contact’ enumerated under the aforesaid section to instances of ‘skin to skin
contact’ would end up destroying the rationale of the provision. The court noted how if such
were the case, then an individual intending to assault a minor could conveniently resort to
using surgical gloves in order to escape the requirement of & skin to skin contact and thus
circumvent the provision’s applicability.
The court explained that the most important ingredient for constituting the offence of sexual
assault under Section 7 of the POCSO Act is ‘sexual intent’ and not skin-to-skin contact. In
Section 7 of the POCSO Act, the term ‘physical contact’ is of wider import than the word
‘touching’ and is not limited to touch. While interpreting the latter part of section 7 the court
explained that the expression ‘any other act’ involving ‘physical contact’ may include direct
physical contact by the offender, with any other body part of the victim except those
mentioned in the first part of Section 7 and other acts such as the use of an object by the
offender, engaging physical contact with the victim. Even no contact by the offender may
come under the purview of the expression “any other act”. For example in a case where the
victim is coerced to touch oneself.
To determine whether touch or physical contact is made with sexual intent, one has to look at
the surrounding circumstances. For instance, the nature of the relationship with the child, the
length of contact, its purposefulness and whether there was a legitimate non-sexual purpose
for the contact, place and conduct of the accused before and after such conduct are all
relevant considerations. Courts have to keep in mind that sexual intent is not defined but is
dependent on the facts of a case.

ISSUE –If a man commits penetrative sexual assault with his wife who is a child,
whether he can be held guilty under the POCSO Act?
The Hon’ble Supreme Court in the case of Independent Thought v UOI, 2017 highlighted
the apparent conflict between exception to Section 375 of IPC and the provision of POCSO
Act and held that POCSO Act would override IPC and such man would be liable under
section 6 of the POCSO Act for committing the offence of penetrative sexual assault against
his wife who is a child.
Exception 2 to section 375 of IPC provides that the sexual intercourse by a man with his own
wife who is above 15 years of age is not rape. Therefore, sexual intercourse by a man with his
own wife who is between 15 to 18 years of age is not rape for the purposes of section 375 but
is an offence under section 6 f POCO Act.
The Hon’ble SC while addressing this conflict has held that there is no rationale for an
artificial distinction which has been made by the exception 2 to section 375 of the IPC
between a married girl and an unmarried girl. Section 42 of POCSO Act clarifies that where
an offence is punishable both under the POCSO Act and IPC, then the offender shall be liable
to punishment under POCSO or under IPC, whichever is greater in degree.
Section 42A further provides that POCSO is not in derogation to other laws but in addition to
other laws. The latter part of section 42 A provides that in case of any inconsistency, the
provisions of this Act shall have overriding effect on the provisions of any such law to the
extent of the inconsistency.
Therefore the court read down the exception 2 to section 375 of IPC and concluded that the
act of sexual intercourse by a man with his own wife who is below 18 years of age is rape
under section 376 of IPC and would also amount to an offence under section 6 of POCSO
Act.

Section 19,20 and 21 – Reporting of offences

Purpose – A disturbing trend in our society is, non-reporting of sexual assaults on minor
children. There is a duty cast on every citizen of this country if they witness or come to know
of any act of sexual assault or abuse on a minor child to report the same to the police or to the
JJ Board. Non-reporting of such crime is therefore considered to be a serious crime and is a
punishable offence under section 21 of POCSO Act, 2012.
ISSUE- What degree of knowledge is required to charge an accused with an offence
under section 21 if The POCSO Act?
The Hon’ble Supreme Court in the case of Tessy Jose v State of Kerala, 2018 observed that
to convict a person under section 21 of the POCSO Act evidence against the accused must be
such which indicate that the accused had great suspicion of the commission of the offence
and still he/she failed to report the same. Mere likelihood of suspicion cannot be the reason to
charge a person for an offence under section 21.

Direction regarding publication of information related to victim of rape or a child

victim under POCSO Act r.w. section 23 of POCSO Act-
In the case of Nipun Saxena v. Union of India,2018 SC , the Hon’ble Supreme Court
observed that it is an unfortunate reality of the society that the victims of sexual offences are
out casted from the society including their families. Therefore, victim of sexual offences
require certain level of protection and their identity shall be protected in light of their right to
privacy under Article 21 of the Constitution. The Hon’ble Supreme Court therefore laid down
certain direction regarding publication of information related to victim of sexual offences.
1. No person can print or publish in print, electronic, social media, etc. the name of the
victim or even in a remote manner disclose any facts which can lead to the victim being
identified and which should make her identity known to the public at large.

2. In cases where the victim is dead or of unsound mind the name of the victim or her identity
should not be disclosed even under the authorization of the next of the kin, unless
circumstances justifying the disclosure of her identity exist, which shall be decided by the
competent authority, which at present is the Sessions Judge.

3. FIRs relating to offences under Sections

376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under
POCSO shall not be put in the public domain.

4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim
to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is
disclosed, as far as possible, in a sealed cover and replace these documents by identical
documents in which the name of the victim is removed in all records which may be
scrutinised in the public domain.

6. All the authorities to which the name of the victim is disclosed by the investigating agency
or the court are also duty bound to keep the name and identity of the victim secret and not
disclose it in any manner except in the report which should only be sent in a sealed cover to
the investigating agency or the court.

7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a

victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the
Sessions Judge concerned until the Government acts under Section 228A(2)(c) and lays down
a criteria as per our directions for identifying such social welfare institutions or organisations.

8. In case of minor victims under POCSO, disclosure of their identity can only be permitted
by the Special Court, if such disclosure is in the interest of the child.

9. All the States/Union Territories are requested to set up at least one ‘one stop centre’ in
every district within one year from today.