The POCSO Act, 2012

What the POCSO Act is, and who it protects

The Protection of Children from Sexual Offences Act, 2012 is Act 32 of 2012, in force since 14 November 2012. It is a special law for sexual offences against children, with its own offences, its own courts and its own procedure for taking a child’s evidence.

It protects a "child", which section 2(d) defines as "any person below the age of eighteen years". The definition says nothing about sex or gender, and neither do the offences, so the Act protects boys and girls equally. It applies whoever the offender is, including a family member, a teacher or someone in a position of trust.

It was significantly strengthened by the Protection of Children from Sexual Offences (Amendment) Act, 2019, in force from 16 August 2019, which raised minimum punishments and substituted a new section 6 that includes death among the punishments for aggravated penetrative sexual assault. The Act works alongside the general criminal law rather than replacing it (s. 42A).

The offences under POCSO, and their punishments

The Act pairs each offence with an aggravated form. An offence becomes aggravated where the offender holds a position of trust or authority — a police officer, a member of the armed forces, a public servant, staff of a jail, hospital or educational institution, a relative — or where the circumstances are especially grave, including where the child is under twelve, as section 5 and section 9 set out in detail.

The punishments below are as amended in 2019. Where the Act says a fine is to be imposed, it also says the fine must be "just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim" (ss. 4(3), 6(2)).

Who must report an offence under POCSO

Section 19(1) puts the duty on "any person (including the child)" who has an apprehension that an offence is likely to be committed or knows that one has been committed. The information goes to the Special Juvenile Police Unit or the local police. It must be given an entry number, written down, read back to the informant and entered in a register; if a child reports, it must be recorded in simple language the child understands, with an interpreter where needed.

Section 20 extends the duty to people who come across sexually exploitative material involving a child in the course of work — personnel of the media, hotels, lodges, hospitals, clubs, studios and photographic facilities, whatever the size of the establishment.

Failing to report or record an offence is itself punishable: up to six months, or fine, or both (s. 21(1)). A person in charge of a company or institution who fails to report an offence involving a subordinate under their control faces up to one year and fine (s. 21(2)). None of this applies to a child (s. 21(3)).

How the law protects a child through the process

Much of the Act is about taking a child’s account without harming the child further. The protections are duties, not courtesies.

Special Courts, sections 29 and 30, and support and compensation under the POCSO Rules

For speedy trial, each State must designate a Court of Session in every district as a Special Court for POCSO offences, in consultation with the Chief Justice of the High Court (s. 28).

The Act sets two time limits for that court. The child’s evidence must be recorded within thirty days of the Special Court taking cognizance, and any delay must be explained in writing. The trial must be completed, as far as possible, within one year of cognizance (s. 35).

The family or guardian of the child may engage a legal practitioner of their choice (s. 40), and the court may use a translator or interpreter, and for a child with a disability a special educator or someone familiar with how the child communicates (s. 38). Every child is within the categories eligible for free legal services under section 12 of the Legal Services Authorities Act, 1987.

Section 29 says that where a person is prosecuted for committing, abetting or attempting an offence under sections 3, 5, 7 or 9 — penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault — the Special Court "shall presume" that the person did so "unless the contrary is proved". It is not automatic guilt. The prosecution must still prove the basic facts on which the presumption rests, and the Supreme Court has described the facts proved by the prosecution as the foundational facts for raising it (Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, 2024 INSC 987). The accused may then rebut it.

Section 30 deals with the mental element. Where an offence requires a culpable mental state — intention, motive, knowledge or belief — the Special Court presumes it, and the accused may prove that they had no such mental state. For that defence, a fact counts as proved only when the court believes it beyond reasonable doubt, not merely on a preponderance of probability (s. 30(2)).

The Protection of Children from Sexual Offences Rules, 2020 (G.S.R. 165(E), 9 March 2020) add practical support. Under rule 4(8), the Child Welfare Committee may, with the consent of the child and the parent, guardian or trusted person, provide a support person to assist the child throughout investigation and trial, and must tell the police it has done so. The Supreme Court has called the services of a support person a legal entitlement rather than a suggestion (Bachpan Bachao Andolan v. Union of India, 2023).

On compensation, rule 9(1) lets the Special Court, on its own or on an application by or for the child, order interim compensation for relief or rehabilitation at any stage after the FIR, adjusted later against any final award. The court may also recommend compensation whether the case ends in conviction, acquittal or discharge, or the accused is not traced, where the child has suffered loss or injury (rule 9(2)). The State Government pays from its victim compensation fund (rule 9(4)), and must pay within 30 days of receiving the order (rule 9(5)).