Suppose one day a teacher notices a slight change in the behaviour of a ten-year-old student; she’s withdrawn, flinches at a slight touch, and one day decides to tell that a relative has been touching her inappropriately. In such a situation, the teacher doubts what she should do. Who does she call? Is she legally required to report it herself?
Like this, there are thousands of cases in India where parents and children don’t know what they should do, how they can protect their children, and take appropriate legal action against those criminals. That’s why the Indian law created the POCSO Act, full form Protection of Children from Sexual Offences Act, 2012.
In this blog, we will explore how you can report such incidents, what protections and remedies are available, and punishments for criminals under this Act. Further, you can consult with our experienced criminal lawyer for a step-by-step guide
What is the POCSO Act?
The POCSO Act was implemented on 14 November 2012 to protect and prevent sexual offenses against children and punish those who commit such offenses. It’s India’s first standalone criminal law dedicated to offenses against minors.
Before POCSO, such cases were handled under the Indian Penal Code, and none of them were written specifically to address sexual abuse against children:
The Act covers different types of sexual offenses, like:
- Sexual assault
- Sexual harassment
- Sexual offences including penetration
- Using children for pornography
This Act is created to protect every child under 18 years of age regardless of their gender. It also guides people to come out and report such cases to the police so that the child can be protected and the incident doesn’t repeat.
How Does the POCSO Act Protect Children?
The POCSO Act protects the victims; it ensures that from reporting the case to the final decision of the court, the child’s identity is kept safe and avoids any circumstances that can cause trauma to the child.
Some of the important protections include:
- Gender neutrality: Both the victim and the accused can be of any gender.
- Graded offences: Punishments are decided based on the offence and circumstances of the act.
- Special Courts: POCSO cases are tried by designated Sessions Courts, not ordinary criminal courts, and proceedings happen in camera to protect the child’s identity and dignity.
- Mandatory reporting: Anyone who becomes aware of an offence, including the survivor themselves, has legal routes to report it, and certain categories of adults are legally obligated to do so.
- No importance to “consent” under POCSO, a person below 18 is legally incapable of consenting to a sexual act, so the question of consent does not arise as a defence.
Offences and Punishments Under POCSO: Section by Section
Any person who commits an offence punishable under this Act shall be punished with imprisonment for the described offence, in a manner commensurate with the nature and severity of the act.
| Offence | Defines Punishment | Punishment Section | Punishment Range |
|---|---|---|---|
| Penetrative Sexual Assault | Section 3 | Section 4 | Minimum jail for 10 years (or minimum jail for 20 years if the child is below 16 age) can increase to lifetime, plus fine |
| Aggravated Penetrative Sexual Assault | Section 5 | Section 6 | Minimum jail for 20 years, can increase to life or death penalty, plus fine |
| Sexual Assault (non-penetrative) | Section 7 | Section 8 | Imprisonment for 3 to 5 years, plus fine |
| Aggravated Sexual Assault | Section 9 | Section 10 | Imprisonment for 5 to 7 years, plus fine |
| Sexual Harassment | Section 11 | Section 12 | Imprisonment up to 3 years, plus fine |
| Use of Child for Pornographic Purposes | Section 13 | Section 14 | Imprisonment for a minimum of 5 years with a fine. |
Reporting a POCSO Offence: How the Process Works
As per Section 19 of the POCSO Act, if someone has information about a crime that is likely to happen or has been committed has a legal duty to report it to the police. And under Section 21, any person who fails to report shall be punished.
In practice, the reporting chain generally works like this:
- Information is given to the Special Juvenile Police Unit (SJPU) or the local police, who are required to record it without refusing on grounds of incomplete or unclear evidence.
- The police notify the Child Welfare Committee (CWC) within 24 hours of recording the report.
- Where, on investigation if police believe the child needs protection and care, they can take the child to a shelter home, get a medical check-up within 24 hours, and provide the child with protection.
- The person who acted in good faith and provided the information shall not be considered liable for anything.
Under Section 22, a person who files a false complaint or provides false information with the intention to humiliate or defame the other person shall be punished with imprisonment, but the intent of the informer matters, and information is not considered false until it’s proven before the court. And in case the child gives a false statement, no punishment shall be imposed on the child.
How the POCSO Act Ensures Child Safety During Investigation and Trial?
POCSO doesn’t just define offences; it reshapes how the justice system is supposed to treat a child throughout the process:
- For statement recording, they must create a friendly atmosphere by allowing a family member or friend whom the child trusts.
- The child should not be kept in a police station overnight.
- The court must ensure the identity of the child is kept secret during investigation and trials.
- The child should not see the accused at any time during the trials, to prevent any trauma or anxiety.
- Medical examination shall be conducted under the watch of a female officer by a female doctor in the presence of a parent.
- The trial should be conducted in camera.
Can You Get Bail in the POCSO Act?
Offenses under the POCSO Act are generally considered non-bailable and cognizable. Means the police can arrest you without a warrant, and you can’t apply for bail at the matter of time. And all the bail-related procedure in POCSO is handled by the Special Court under Section 31 of the Act.
So, how can you get bail under the POCSO Act?. You can apply for bail before the Special Court, and it can be granted if the Court allows it after considering the facts, allegations, and evidence of the case. You can check out our detailed guide on bail in India for various offenses.
What Factors Can Matter in a POCSO Bail Application?
A bail decision is fact-specific. Depending on the case, courts may consider matters such as:
- the nature and seriousness of the allegations;
- the specific POCSO sections invoked;
- the available material collected during investigation;
- the stage of investigation or trial;
- the possibility of the accused influencing witnesses;
- the possibility of tampering with evidence;
- the likelihood of the accused absconding;
- the relationship between the accused and the child;
- the accused’s conduct and previous criminal history, where relevant; and
- other circumstances recognised under applicable bail law.
A lawyer should assess the actual FIR, statements, evidence and procedural stage before advising on the prospects of bail.
What are the Duties of Parents, Schools, and Institutions Under the POCSO Act?
Apart from the duty of reporting such incidents, it’s also the duty of parents and teachers to help the children understand and differentiate between sexual offenses.
At schools, teachers should spread awareness about the POCSO Act; in fact, every school must have POCSO-compliant reporting protocols in their child protection policies for exactly this reason. And the staff must be trained on how to identify the signs of abuse, whom to report to, and how they can help the children.
At home, the parents should create a friendly environment and explain to their child what a good touch and a bad touch are, and build trust so that their child can share their feelings. The priority is to believe them and report to the police or CWC rather than handling the matter informally.
Common Mistakes that Victims Should Avoid in a POCSO Case
This is for everyone who is related to the victim and is responsible for the victim, like their parents, guardian, or teacher. Your priority should be child protection and reporting the case at your local police station. And avoid making these common mistakes:
- Ignoring or delaying reporting sexual abuse at the police station.
- Not consulting a professional, trying to handle it privately.
- Putting pressure on the child, repeatedly asking them questions.
- Confronting the accused before reporting the case.
- Trying to investigate the allegation yourself.
- Sharing confidential information about the child.
- Thinking the case is over because the accused has been granted bail.
When Should You Consult a Lawyer in a POCSO Case?
If one day, suppose a child discloses a secret that they have been abused, what will be your first reaction? You’ll be angry and want to punish the accused. But at that point, you need to stay calm and help your child believe that nothing is wrong; no one will harm them.
Then the first step should be consulting a lawyer, who can help you understand legal options available for your case and how to file a legal complaint against the accused.
- When you file a POCSO complaint.
- The police have contacted you for investigation with the child.
- The family and child are receiving threats or being pressured to change their statements.
- The accused has been arrested.
- You have received a court notice or summons.
If you want to file a POCSO case, our legal team at Kamal & Co. Advocates will provide complete assistance, will help you understand legal provisions, your legal rights, and provide efficient representation before court.
