LexThe POCSO Act,2012
Punjab · state statute
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The Gazette of Gudia
EXTRAORDINARY
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PART I — Sertion |
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PU BL ISHE ‘D BY AUTHORITY
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No. 34] NEW! DELHI, WEDNESDAY, JUNE 20, 2012/ JYAISTHA 30, 1934 (SAKA)
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Separate paging is given to to this Part in order that it may be filed as a separate compilation,
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 20th June, 2012/Jyaistha 30, 1934 (Saka)
The following Act of Parliament received the assent of the President on the
19th June, 2012, and is hereby published for general information: —
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
ACT, 2012
[No. 32 oF 2012)
[19th June, 2012]
An Actto protect children from offences of sexual assault, sexual harassment and
pornography and provide for establishment of Special Courts for trial of
such offences and for matters connected therewith or incidental thereto,
Wuerras clause (3) of article 15 of the Constitution, inter alia, empowers the State to
make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of the United
Nations, which has prescribed a set of standards to be followed by all State parties in
securing the best interests of the child;
AND WHEREAS it is necessary for the proper development of the child that his or her
right to privacy and confidentiality be protected and respected by every person by all means
and through all stages of a judicial process involving the child:
ASD WHEREAS it is imperative that the law operates in a manner that the best interest
and well being of the child are regarded as being of paramount importance at every stage, to
ensure the healthy physical, emotional, intellectual and social development of the child;
Anp wrertas the State parties to the Convention on the Rights of the Child are
required to undertake all approp jonal, bilateral and multi
(a) the inducement or coercion of a child to engage im any umnlawfol sexual activity,
2 THE GAZETTE OF INDIAEXT RAORDINARY [Parr L-
(A) the explorative use of children in Prostitunon or other unlawful sexual pracuces, (cp the explorative use of children in Pornographic Performances and materials; AND WHEREAS Sexual exploitation and sexual abuse of children are heinous crimes and feed to be effectively addressed,
Be it enacted by Parliament in the Sixty-third Year of the Republic of India as follows: -
CHAPTER |
PReimmnary
Short tithe, 1. (/) This Act may be called the Protection of Children from Sexual Offences Act, 2012 oes (2) Itextends to the whole of India. except the State of Jammy and Kashmir, (J) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint
Definibons. 2. (/) In this Act, unless the Contest otherwise requires, —
(a) “aggravated penetrative sexual assault” has the same meaning as assigned to it imsection 4;
(4) "aggravated sexual assault" has the same Meaning as assigned to it in section 9; (c) “armed forces or security forces” means armed forces of the Union or security forces or police forces, as specified in the Schedule,
(a) “child” means any person below the age of eighteen years;
(e) “domestic relationship" shall have the Same meaning as assigned to it in Clause (/) of section 2 of the Protection of Women from Domestic Violence Act, 2005; rf] “Penetrative sexual assault” has the same meaning as assigned toi in section 3; (g) “prescribed” means Prescribed by rules made under this Act:
(4) “religious institution” shal! have the same Meaning as assigned to it in the Religious Institutions (Prevention of Misuse) Act, 1988;
(i) "sexual assault" has the same Meaning as assigned to it in section 7. (/) “sexual harassment” has the same Meaning as assizned to it in section | 1, (4) "shared household” means a household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child:
() "Special Court" means a court designated as such under Section 8; (m) “Special Public Prosecutor” means a Public Prosecutor appointed under section 32,
CHAPTER II
SEXUAL OFFENCES AGAINST CHILDREN
AL PEexetearive SEXUAL ASSALILT ASD PUNISHMENT THF REFOR Penetratve 4. A person is said tw commit “pénctrative sexual assault” if — crn (a) he penetrates his penis, wo any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do $0 with him or any other person: or (6) be inserts, to any extent, ny object or a part of the body. not being the penis, into the vagina, the urethra of anus of the child or makes the child todo so with him or any other person: or
43 of 2005
4) of |x
48 of 1880
2 of 1974
36 of 2000
21 of 2000
Sec. 1] THE GAZETTE OF INDIA EXTRAORDINARY 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 the child or makes the child to do
so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes
the child to do so to such person or any other person,
4. 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 te fine.
B.— AGGRAVATED PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR,
5. (a) Whoever, being a police officer, commits penetrative sexual assault ona child —
(4) within the limits of the police station or premises at which he is appointed; or
(a) in the premises of any station house, whether or not situated in the police
station, to which he is appointed: or
(iif) in the course of his duties or otherwise: or
(i) where he is known as, or identified as, a police officer; or
(6) 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
(i) in any areas under the command of the forces or armed forces; or
(Hi) 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
(a) 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
(fl 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 penctrative sexual assault on a child,
Explanation —When a child is subjected to sexual assault by one or more persons of 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
(A) whoever commits penetrative sexual assault on a child using deadly weapons, fire,
heated substance or corrosive substance; of
()) whoever commits penctrative sexual assault causing grievous hurt or causing bodily
harm and injury or injury to the sexual organs of the child: or
Punishment
for
penetrative
sexual avsault
Aggravated
penetrative
Sexual assault
Punishment
for aggravated
penetrative
ocaual assault
Scumal ascaalt
4 THE GAZETTE OF INDIA EXTRAORDINARY {Paxr l-—
U) whoever commits penetrative sexual assault on a child, which
(/) physically incapacitates the child or causes the child to become mentally ill a8 defined under clause (>) of section 2 of the Mental Health Act, 1987 or causes
impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ir) tn the case of female child, makes the child Pregnant as a consequence of sexual assault;
(i) 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
(A) 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 repeated!y: or
(m) whoever commits penetrative sexual assault on a child below twelve years; oF
(n) whoever being a relative of the child through blood or adoption of 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
(0) 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 penctrative sexual assault ona child and attempts to murder the child: or
(s) whoever commits penctrative sexual assault ona child in the course of communal or sectarian violence: or
(1) whoever commits penetrative sexual assault on achild and who has been previously convicted of having commited any offence under this Act or any sexual offence punishable under any other law for the time being in force; or
(u) whoever commits penctrative sexual assault on a child and makes the child to strip or parade naked in public,
is said to commit aggravated penetrative sexual assault,
6. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for aterm which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine
(C~-SOMUAL ASSAULT AND PUNISHMENT THEREHOR
7, 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, of does any other act with sexual intent which involves physical contact without Penetration is said to commit sexual assault,
M4 of 1987
160661
1806GI
4 of L587
& Whoever, commits sexual assault, shall be punished with imprisonment of ether
description for aterm which shall not be less than three years but which may extend to five
years, and shall aiso be liable te fine
D.-— AGGRAVATED SEXUAL ASSALIL’ AND PUNISHMENT THERFHGR
4, (a) Whoever, being a police officer, commits sexual assault on a child—
(i) within the limits of the police station or premises where he is appointed, of
(ii) in the premises of any station house whether or not situated in the police
station to which he is appointed, or
Lil) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer; or
(b) whoever, being a member of the armed forces or security forces, commits 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 security or armed forces, or
(iii) in the course of his duties or otherwise, or
(A) where he is known oF identified as a member of the security or armed forces; or
(c) whoever being a public servant commits sexual assault on a child, or
(@) whoever being on the management or on the staff of a jail, or remand home or
protection home or observation home, or other place of custody or care and protection
established by or under any law for the time being in force commits sexual assault on a child
being inmate of such jail or remand home or protection home or 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 sexual assault on a child in that hospital; or
(f) whoever being on the of staff of an educational institution or reli
institution, commits sexual assault on a child in that institution, or
(g) whoever commits gang sexual assault on a child.
Explanation —when a child is subjected to sexual assault by ane or more persons of
a group in furtherance of their common intention, each of such persons shall be deemed to
have committed gang sexual assault within the meaning cof 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
(4) whoever commits sexual assault on a child using deadly weapons, fire, heated
substance or corrosive substance, or
(0) Whoever commits sexual assault causing grievous hurt or causing bodily harm and
injury o¢ injury to the sexual organs of the child, or
(/) whoever commits sexual assaull ona child, which—
(i) physically incapacitates the child ur causes the child to become mentally ill as
defined under clause (/) of section 2 of the Mental Health Act, 1987 of causes impairment
of any kind so as to render the child unable to perform regular tasks, temporarily or
permanently; oF
(ii) inflicts the child with Human immunodeficiency Virus of any other life
threatening disease or infection which may cither temporarily or permanently impair
the child by rendering him physically incapacitated, or mentally ill to perform regular
tasks, oF
Yursskment for
scweal evcault,
Aggravated
sevual assault
Puntshmest
for aggravated
venual assault
Sexual
harassment
Punishment
ton sexual
harassment
Lise of child for
pornographic
purposes
() whoever, taking advantage of 4 child's mental or phwsteal disability, commits
sexual assault on the child. or
(} whoever commits sexual assault on the child more than once or repeatedly: or
(m) whoever commits sexual assault ona child below twelve years, or
(n) whoever, being a relative of the child through blood of adoption or mamage or
ip or in foster care, or having, domestic relationship with a parent of the child, or
who is living in the same ar shared household woth the child, commits sexual assault o such chikh or
(o} whoever, being in the ownership of management or sta‘T, of any institution providing
services to the child, commits sexual assault on the child in such instiuuen, or
(p) whoever, being 1 a position cof trust or authority ofa child, commits sexual assault
on the child in an institution or home of the child or anywhere else, or
(q) whoever commits sexual assault on a child knowing the child ts preynant: or
(r) whoever commits sexual assault ona child and attempts to murder the child; or
(8) whoever commits sexual assault ona child in the course of communal or sectarian
violance; or
(rj whoever comiits 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, or
(u) whoever commits sexual assault. on a child and makes the child to strep or parade
naked in public,
is said to commit aggravated sexual assault.
10. Whoever, commits aggravated sexual assault shall be punished with imprisonment
of either description for a term which shall not be bess than five years but which may extend
to seven years, and shal! also be liable to fine
E. —SExUAL HARASSMENT ANT PUNISHMENT THEREFOR
11..A person is said to commit sexual harassment upon achild 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
(i) makes a child exhibit his body or any part of his body so as il is seen by such
person or any other person, or
(2) shows any object to a child in any form or media for pornographic purposes. or
(iv) repeatedly or constantly follows or warches or comtacts a child ether directly
or through electronic, digital or any other means; of
(vi) threatens to use, in any form of media, areal 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 therefor.
Explanation —Any question which involves “sexual intent” shall be a question of fact.
12. Whoever, commits sexual harassment upon a child shall be punished with
imprisonment of either description for aterm which may extend to three years and shall also
be liable to fine.
CHAFTERIU
Usenci CHILD FOR PORMOOKAPHIC PURPOSES ANID PUNISHMENT THERE ROH
13. 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 nol such programme or adverusement is intended for personal use or for
distribution), for the purposes of sexual gratification, which includes
(ua) representation sexual organs of a child;
(A) usage of a child engaged in real or simulated sexual acts (wit
penctralion).
tc) the indecent or obscene representation of a child
shell be euilty of the offence of este a chi for poemogranhic p
or without
iSAzET TEOF INDIAE. ATRAGRD) ‘
Explanation —For the purposes of this. section, ihe expression “use a child” shall
include involving achild through any medium Ti like print, electronic, ‘computer or any other
technology for prep offering, ig. publishing. fa jon and
distribution of the pornographic material,
14, (/) 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 a
liable to fine and in the event of second or sub with i
either descnption for « 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 pomographic acts, 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) Ifthe person using the child for pornographic purposes commits an offence referred
to in section 5, by directly participating in pormographic acts, he shall be punished with
figorous imprisonment for life and shall also be liable to fine.
(4) Ifthe person using the child for pomographic purposes commits an offence referred
tu 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) Ifthe person using the child for pomographic purposes commits an offence referred
to in section 9, by tarecer paricictilan ta parapet meta he shall be punished with
imprisonment of cither description for a term which shall not be less than eight years but
which may extend to ten years, and shall alzo be liable to fine.
18. Any person. who stores, for i any p i¢ material in
any form involving a child shall be punished with imprisonment muedion which
may extend to three years or with fine or with both.
CHAPTER IV
ABETMENT OF AND ATTEMPT TO COMMIT AN OFFENCE
16. A person abets an offence, who—
Firss.—. Instigates any person to do that offence; or
Secondiy.— Engages with more other pe: persons in any
for the doing of that offence, if an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that offence; or
Thirdly. —Intentionally aids, by any act or illegal omission, the doing of that
offence.
Explanation |.— A person who, by wilful misrepresentation, or by wilful concealment
of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts
to cause or procure a thing to be done, is said to instigate the doing of that offence.
Explanation Il. —Whoever, either prior to or atthe time of commission of an act, does
anything in order to facilitate the act, thereby
thereof, is said to aid the doing of that act.
Explanation II! Whoever employ, harbours, receives or transports a child, by means
of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of
power or of a position, vulnerability or the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the purpose of any
offence under this Act, is said to aid the doing of that act.
17. Whoever abets any offence under this Act, if the act abetted is committed in
of the ab . Shall be punished with punish provided for that offence.
Explanation _Anacr fence a be commited in consequne of ahem,
when it 1s in of the instig or inp of the
with the aid, which constitutes the abetment
18. Whoever attempts to commit any offence punishable under this Act or to cause
such an otfence 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
Punvibiment fer
using child fur
purposes,
for storage of
Pornographic
material
involving
ehild
Abeiment of
an offence
Puonhment for
abeument
Punshment
for aitempt to
commit an
offence
Reporting,
offences
‘Obligation of
media studic
and
Photographic
facilitees to
fepart cases,
Punshment
for failure to
repel oF
record a cae
Punishment
for false
coraplaint
of false
information
PACE TTEOF INDIA ENT RAORDINAKY
offence, for a term which may extend to eng-half of the amprasonment for life or, as the case may be, one-half of she longest term of imprisanmen provided for that offence or with fine or swith both,
CHAPTER V
PROCEDURE FOR REAURTING OF CASES
19. (/) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence hes been committed, he sha! provide such information to,
(a) the Special Juvenile Police Unit, or
(A) the local police
(2) Every report given under sub-section (/) shall be-
tu) ascribed an entry number and recorded in writing:
(+) be read over to the informant:
{c) shal! be entered in a book to be kept by the Police Unit
(4) Where the report under sub-section (7) 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 is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees.as may be prescribed, shal) be provided to the child if he fails to understand the same.
(3) Where the Special Juvenile Police Unit or Incal Police ts satisfied that the child agamst 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 in 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 Speciai Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the mater 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 laken 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 wy
20, Any personnel of the media or hotel of lodge or hospital or club or studio or Photographic facilities, by whatever name calied, irrespective of the number of Persons employed therein, shall, on coming acToss any Material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation ofa 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 21. (/) Any person, who fails to Feport the commission of an offence under sub- section (/) 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 ii-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section ( !) 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 (J) shall not apply to a child under this Act. 22.17) Any person, who makes false complaint of provides talse information against any person, im respect of an offence committed under sections 3, 5, 7 and section 9, solely with the intention lo humiliate, extort or threaten oF defame him, shatl be punished with imprisonment for aterm which may extend to six months or with fine or with bowh (2) Where a false complaint has been made or false informanion has been provided by a child, no punishment shall be imposed on such child
(7) Whoever, not being ac makes a false Complaint of provides false information Ogainst a child, knowing it to be fake thereby wictimising such child in any of the offences. under this Act, shal! be punished with Inprsanment which may extes vane wear or with
2of 1974
Sec. I] THE GAZETTE OF INDIA EXTRAORDINARY 9 —<——S—SS SS —S—S—S—SS—S—ESSEE
23.(/) No person shall make any report or presenl comments ca any child fom aa, 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 (C) of 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.
CHAPTER VI
PROCEDURES FOR RECORDING STATEMENT OF THE CHILE
24. (/) The statement of the child shall be recorded at the residence of the child or ata place where he usually resides or atthe place of his choice and as far as practicable by « 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 al no point of time the child come in the contact in any way 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. 25. (J) Ifthe statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (herein referred to as the Code), the Magistrate recording such Statement shall, notwithstanding anything contained therein, record the statement as Spoken by the child:
Provided that the provisions contained in the first proviso to sub-section (/) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.
(2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code,
26. C) The Magistrate or the police officer, as the case may be, shall reeord the Statement as spoken by the child in the presence of the parents of the child or any other Person in whom the child has trust or confidence.
(2) Wherever necessary, the Magistrate or the police officer, as the case may be, may lake the assistance of a translator or an interpreter, having Such qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child
(3) The Magistrate ot the police officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a Special educator or any Person familiar with the manner of communication of the child or an expert in that ficla having such qualifications, experience and on Payment of such fees as may be Prescribed, to record the statement of the child,
(4) Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure thal the statement of the child is also recorded by audio-video electronic means,
media
Recording of
Statement of a
ehild,
Recording of
Statement of a
child by
Magistrate
Additional
Provisions
are
Satement [0
be recoded,
Medical
examination
of a child
Designation
of Specaal
Courts
Presumption
as to certain
offences
Presumption
Application of
Code of
‘Cnminal
Procedure,
1973 to
Proceedings
before a
Special Court.
10 THE GAZETTE OF INDIA EXTRAORDINARY __ [Past
27. (/) 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 offences under this Act, be conducted in accordance with
section 164A of the Code of Cruminal Procedure, 1973
(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 institution.
(CHAPTER VII
Srecia Counts
28. (/) For the purposes of providing a speedy trial, the State Government shall in
consultation with the Chief Justice of the High Coun, by notification in the Official Gazette,
designate foreach district, a Courtof 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 or a Special Court designated for
similar purpases 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 (/)], with which the accused may, under
the Code of Criminal Procedure, 1973, be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in the
Information Technology Act, 2000, shall have jurisdiction to try offences under section 67B of
thal 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 facilitates abuse of children online.
29, Where a person 6 p d for ing of abetting or arent arty offence
under sectons 3, 5, 7 and secpon 9 of this Act the Speckd Coun shall presume, that such person has.
‘committed or abetted of attempted to commit the offieee, as the case may be unless the contrary is proved.
30. (/) 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 stale with respect to the act charged as an offence in that prosecution.
(2) 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 1s
established by a preponderance of probability.
Explanation —1n this section, “culpable mental state includes intention, motive,
knowledge of a fact and the belief in, or reason to believe, a fact.
Ji. Save as otherwise provided in this Act, the provisions of the Code of Criminal
Procedure, 1973 (including the provisions.as to bail and bonds) shall apply w the proceedings
before a Special Court and for the purposes of the said provisions, the Special Court shall
be deemed to be a Court of Sessions and the person conducting a prosecution before
a Special Court, shall be deemed to be a Public Prosecutor.
lof 1974
4 of 2006.
2 of 1974
2 of 2000
2 of 1974
lof 1974
2 of 1974,
36 of 2000.
32, (/) The State Government shall, by notification in the Official Gazette, appoint a
Special Public Prosecutor for every Special Court for conducting cases only under the
provisions of this Act.
(2) Aperson shall be eligible to be appointed as a Special Public Prosecutor under sub-
section (/) only if he had been in practice for not less than seven years as an advocate.
(J) Every person appointed as a Special Public Prosecutor under this section shall be
deemed to be a Public Prosecutor within the meaning of clause (w) of section 20f the Code of
Criminal Procedure , 1973 and provision of that Code shall have effect accordingly.
CHAPTER VIII
PROCEDURE AND POWERS OF SPECIAL COURTS AND RECORDING OF EVIDENCE
33. (/) ASpecial 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 ¢xamination-in-chief, cross-examination or re-examination
ofthe 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.
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 limes 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 tohim 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 ihe powers 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 for trial before a Courl of Session.
34. (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,
(2) Ifany question arises in any proceeding before the Special Court whether a person
isachild 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.
Spies Pabhe
Prosecutors
Procedure and
powers of
Special Court
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the
Procedure in
ease of
commission of
offence by
child and
determination
of age by
Special Court
Periad for
recording of
evidence of
ohald ard
disposal of
case
Child not to
sec accused at
the time of
testifying.
Trials to be
conducted in
camera
Assistance of
an interpreter
OF expert
while
recoding
evidence of
ehild
Guidelines for
child to take
assistance of
experts, etc.
Raght of child
to lake
assistance of
practitioner
Provisions of
seonons 3 uo 13
od to pep un.
certain canes,
Alternative
puntshment
THE GAZETTE OF INDIA EXTRAORDINARY : [Paxt i
(3) No order made by the Special Court shall be deemed io be invaid merely by any
subsequent proof that the age Of a person as determined by it under sub-section (2) was not
the correct age of that person
34, (/) The evidence of the child shall be recorded within a period of thirty days of the
Special Court taking cognizance ofthe 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.
36. (J) The Special Court shall ensure that the child is not exposed in any way to the
accused at the time of recarding 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 purposes of sub-section (J). the Special Court may record the statement of
a child through video conferencing or by utilising single visibility mirrors of curtains or any
other device.
37, 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
MR (/) Wherever necessary, the Court may take the assistance of a translator or
interpreter having such qualifications, experience and on payment of such fees as may be
prescribed, while recording the evidence of the child.
(2) fa child has a mental or physical disability, the Special Court may take the assistance
ofa special educator or any person familiar with the manner of communication of the child or
an expert in that field, having such qualifications, experience and on payment of such fees as
may be prescribed to record the evidence of the child.
(CHAPTER IX
MISCELLANEOUS
39. Subject to such rules as may be made im this behalf, the State Government shall
prepare guidelines for use of nom-g | organisations, prof Is 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
40. Subject to the proviso to section 301 of the Code of Cruminal Procedure, 1973 the
family or the 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
41. The provisions of sections 3 to 13 (both inclusive) shall not apply in case of
medical or medical ofa child wh h medical ion of medical
treatment is undertaken with the consent of his parents or guardian.
42. 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 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
lof 19%
lof 1974
dof 26.
‘of 2006
43. The Central Government and every State Goverament, shail 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 pubiic,
children as well aa their parents and guardians aware of the provisions of this Act;
(b) che officers of the Central Government and the State Governments and other
concerned persons (inchiding the police officers) are imparted periodic training on the
matters relating to the implementation of the provisions of the Act
44, (/) 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,
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 Stare Commission, referred to
in sub-section (/), 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,
(3) The National Commission or, as the case may be, the State Commission, referred to
in sub-section (/), shall, also include, its activities under this section, in the annual report
referred to in section 16 of the Commissions for Protection of Child Rights Act, 2005.
45. (/) The Central Government may, by notification in the Official Gazette, make rules
for carrying out the purposes of this Act.
2) in particular, and without prejudice to the generality of the foregoing powers, such
rules may provide for all or any of the following matters, namely:—
(a) the qualifications and experience of, and the fees payable to, a translator
‘Of an interpreter, a special educator or any person familiar with the manner of
communication of the child or an expert in that field, under sub-section (4) of section 19;
sub-sections (2) and (3) of section 26 and section 38;
(5) care and protection and emergency medical treatment of the child under
sub-section (5) of section 19;
(c) the payment of compensation under sub-section (4) of section 33;
(@) the manner of periodic monitoring of the provisions of the Act under
sub-section (/) of section 44.
(3) Every rule made under this section shall be laid, as soon as may be after it is made,
before each House of ParliamenExcerpt shown. Open the full act in Lexace.