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The Protection Of Children From Sexual Offences Act , 2012 Is A Welcome Legislation

 

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 : –

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

2. the exploitative use of children in prostitution or other unlawful sexual practices ; and

3. 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 –

1.  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

2.  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

3.  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

4.  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,—

(a) “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;

(b) “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 : –

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

( i ) within the limits of the police station or premises at which he is appointed ; or

( ii ) in the premises of any station house , whether or not situated in the police station , to which he is appointed ; or

( iii ) in the course of his duties or otherwise ; or

( iv ) where he is known as , or identified as , police officer ; or

( b ) Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child –

( i ) within the limits of the area to which the person is deployed ; or

( ii ) in any areas under the command of the forces or armed forces ; or

( iii ) in the course of his duties or otherwise ; or

( iv ) where the said person is known or identified as a member of the security or armed forces ; or

( c ) Whoever being a public servant commits penetrative sexual assault on a child ; or

( d ) 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

( e ) 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

( f ) 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

( g ) 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

( h ) Whoever commits penetrative sexual assault on a child using deadly weapons , fire , heated substance or corrosive substance ; or

( i ) Whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child ; or

(j ) Whoever commits penetrative sexual assault on a child , which –

( i ) 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

( ii ) in the case of female child , makes the child pregnant as a consequence of sexual assault ;

( iii ) 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

( k ) Whoever , taking advantage of a child’s mental or physical disability , commits penetrative sexual assault on the child ; or

( l ) Whoever commits penetrative sexual assault on the child more than once or repeatedly ; or

( m ) Whoever commits penetrative sexual assault on a child below twelve years ; or

( n ) 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

( o ) 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

( p ) 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

( q ) Whoever commits penetrative sexual assault on a child knowing the child is pregnant ; or

( r ) Whoever commits penetrative sexual assault on a child and attempts to murder the child ; or

( s ) Whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence ; or

( t ) 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,—

(a) “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;

(b) “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 , –

(i) 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

(ii) 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

(iii) shows any object to a child in any form or media for pornographic purposes ; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic , digital or any other means ; or

(v) 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

(vi) 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 – ( a ) representation of the sexual organs of a child ;

( b ) usage of a child engaged in real or artificial simulates sexual acts ( with or without penetration ) ;

( c ) 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 : –

1. 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 .

2. 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 .

3. 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 .

4. 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 .

5. 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 : –

1. 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 , –

(a) the Special Juvenile Police Unit ; or

(b) the local police .

2.    Every report given under sub – section (1) shall be –

(a) ascribed an entry number and recorded in writing ;

(b) be read over to the informant ;

(c) shall be entered in a book to be kept by the Police Unit .

3. 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 .

4. 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 .

5. 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 .

6. 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 .

7. 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 : –

1.    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 .

2.    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 .

3. 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 : –

1. 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 .

2. Where a false complaint has been made or false information has been provided by a child , no punishment shall be imposed on such child .

3. 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 : –

1. 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 .

2.  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 .

3.    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 .

4.    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 : –

1. 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 .

2. The police officer while recording the statement of the child shall not be in uniform .

3. 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 .

4. No child shall be detained in the police station in the night for any reason .

5. 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 : –

1. 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) .

2.    In case the victim is a girl child , the medical examination shall be conducted by a woman doctor .

3.    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 .

4.    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 : –

1. 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 .

2. 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 .

3. 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 : –

1. “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 .

2. 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 .

3. The Special Court may , if it considers necessary , permit frequent breaks for the child during the trial .

4. 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 .

5. The Special Court shall ensure that the child is not called repeatedly to testify in the court .

6. 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 .

7. 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 .

8. 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 .

9. 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 : –

1.    “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 ) .

2.    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 .

3.    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 : –

1.    “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 .

2.    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 : –

1.    “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 .

2.    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 –

( a ) 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 ;

( b ) 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 : –

1. 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 .

2.  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 ) .

3.  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 .

Sanjeev Sirohi

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