Context 137
Overview of Legal Framework 138
1. Applicable Laws 138
2. Definition of Child under laws relevant to Child Labour 138
3. Child and Adolescent Labour (Prohibition and Regulation) 139

Act, 1986 [CALPRA]

Offences under the CALPRA 142
Juvenile Justice (Care and Protection of Children) Act, 143

2015 and Model Rules

The Bonded Labour System (Abolition) Act, 1976 144

Processes 145
1. Role of Statutory and Non-Statutory Actors 145
2. Planning rescue of child labourers 149
3. Production of a child involved in labour before CWC 149
FAQs 151

¹ Chapter 3, Annexure 2: Excerpt from SOP on Investigation of Crimes of Trafficking for Forced Labour, UNODC, 2008, pp.15-16

Description Page

Chapter 3, Annexure 1:Penalties for Offences Relevant to 153 Child Labour

4.1. Steps to be taken for rescue procedure¹ 155

Chapter 3, Annexure 3: Significant Court Rulings 157

CHAPTER 4 - OTHER OFFENCES AGAINST CHILDREN 160

Introduction to other kinds of offences 160
Applicable Laws 161
1. Begging 161
2. Cruelty to Children 163
3. Offences involving liquor, narcotic drugs, tobacco 165

products and psychotropic substances 168

Exploitation of a child employee
Illegal Adoption and other adoption-related offences 168
Sale and Procurement of Children 169
Corporal Punishment 170
Use of child by militant groups or other adults 171
Kidnapping and abduction of a child 173
Offences committed on children with disabilities 176
Disclosure of Identity of the Child 177
Mandatory Reporting 178
False complaint and False information under POCSO Act 179
Abetment of suicide of a child 179
Sale of Obscene Objects to Young Persons 179
Abetment of Offences 179

Procedure in case of Offences committed against Children 180
1. Complaint 180
FAQs 181

Chapter 4, Annexure 1: List of Other Offences and Penalties 183

Chapter 4, Annexure 2: Significant Court Rulings 194

Description Page

CHAPTER 5 -CYBER OFFENCES AGAINST CHILDREN 195

The Context 195
Legal Framework on cyber offences against children 197
1. Cyber offences under the Information Technology Act, 2000 197
2. Cyber offences under the Protection of Children from 199

Sexual Offences Act, 2012

Cyber offences under The Indian Penal Code, 1860 203

Institutional and Process Framework 205
1. Functionaries: 205
2. Protection from Child Pornography (Blocking public 211

access of information)

FAQs 213

Chapter 5, Annexure 1: Legal Framework of cyber 215

offences against children

Chapter 5, Annexure 2: Significant Court Rulings 218

CHAPTER 6 - PROHIBITION OF CHILD MARRIAGE 220

The Context 220
Legal Framework on prohibition of child marriage 220
1. Offences under the PCM Act 221
2. Effect of a Child Marriage 221
3. Prevention of Child Marriage 223

Chapter 6, Annexure 1 - Table of Offences 226

under the PCM Act

SECTION III - REHABILITATION AND 226

REINTEGRATION OF THE CHILD VICTIM

Chapter 7 - Introduction to Rehabilitation of Children 226

Legal Framework for Rehabilitation in India 227
1. Restoration 229
2. Institutional Care 230
3. Foster Care 231

Description Page

Adoption 232
Fit Facility/ Fit Person 234
Sponsorship 235
Aftercare 236
Compensation 237

Chapter 7, Annexure 1: Significant Judicial Rulings 239

MkW ,- ih- ekgs'ojh] Hkk-iq-ls-

egkfuns'kd

Dr. A. P. Maheshwari, IPS

Director General

Tel. : 91-11-26781312 (O) Fax : 91-11-26781315

E-mail : dg@bprd.nic.in

iqfyl vuqla/ku ,oe~ fodkl C;wjks

x`g ea=kky;] Hkkjr ljdkj jk"Vªh; jktekxZ&8] efgikyiqj] ubZ fnYyh&110037

Bureau of Police Reserach And Development Ministry of Home Affairs, Govt. of India National Highway-8, Mahipal Pur,

New Delhi-110037

Foreword

Child rights have tremendous significance in every aspect of the development of nations. Ensuring child rights constitute the core of good governance, and therefore is the essence of policing and the criminal justice process in our country. The Bureau of Police Research and Development (BPR&D), being dedicated to improving the quality of policing in India, has been in the fore front in espousing the best methods and enhancing professionalism in Indian Police. In this regard, I am immensely pleased to recommend this book on the law and practice with respect to child victims as a great and timely tool to the millions of investigators, supervisors and caregivers in the law enforcement and justice delivery process. It is a tool, a reference book, as well as a ready reckoner for the practitioners. It is a book that links the text to the context.

Unevenness and distortions in the justice delivery process on child rights has been a concern of all involved for quite some time now. Even a well-articulated law like POSCO (Protection of Children from Sexual Offences) Act of 2012, launched with fervour and zeal, has seen less than 10 per cent cases getting convictions (refer Crime in India of the previous years), meaning thereby that 90 per cent of the victims are not getting justice. This is a serious matter that should make all of us sit up and take notice.In this context, one of the issues that came up across the country was uneven levels of knowledge, skills and attitudinal orientation among the responders. We cannot afford to fail our children and this cannot wait anymore. Hence, I see this book, A Handbook on the Legal Processes for the Police in respect of Crimes against Children as a great instrument for a tremendous and positive impact.

The idea of the book was conceived, developed and put into process by Dr. P.M. Nair, a renowned international expert on child rights, with vast experience and expertise in law enforcement, justice delivery, professional investigation, research, legal drafting, capacity building and convergence of stakeholders. It has been drafted by him and an eminent team, working at the Tata Institute of Social Sciences, with full support from Child Investment Fund Foundation (CIFF). The draft of this book, revised several times by the authors, has been duly vetted by the expert academics of the National Law School of India University, Bengaluru, and the experienced officials of BPRD and has seen further improvements and value additions. The churning process has certainly enriched this book and made it more user- friendly.

I have no doubt that this book, translations of which are being planned in several Indian languages, will be a great support to the officials at the Police Stations and members of the Child Welfare Committee (CWC) across India as well as all associated bodies involved in the mission of supporting child rights. Considering the tremendous value, potential and utility of this book as a tool for positive action and impact, we in BPR&D are happy to publish this book. It is a matter of great pleasure for me to dedicate this book to the children of India, with the fervent hope and belief that it will help millions of children who are subjected or vulnerable to exploitation.

(Dr. A.P. Maheshwari) Director General

New Delhi April 10, 2018

Promoting Good Practices and Standards

The Team that conceived, planned, prepared, drafted, reviewed, revised and finalized this book are as follows:

Dr. P.M. Nair, Dr. Geeta Sekhon, Ms. Swagata Raha, Ms. Shruthi Ramakrishnan, and Ms. Sumati Thusoo.

[The Handbook was conceptualised by Dr. P.M. Nair. He guided the team working on the content and also co-authored parts of Section I, Chapter 2. Dr. Geeta Sekhon, edited the Handbook and authored Section I, Introduction, 1.4 and 1.7. Ms. Swagata Raha authored Sections1.2–1.3 of Section I, Chapters 1, 2, and 3 of Section II. Ms. Shruthi Ramakrishnan authored Sections 1.1 and 1.2 of Section I, Chapters 4, 5, 6 of Section II, and Section III.]

Acknowledgments

We, in the Team,acknowledge the support of the following in drafting, review and value addition:The Children’s Investment Fund Foundation (CIFF), Mr. Hisham Mundol, Mr. Gopikrishna SR, Dr. Meeran Borwankar (retd. DGP), Ms. Kushi Kushalappa, Enfold Trust, Ms. Arlene Manoharan, Centre for Child and the Law, National Law School of India University, Bangalore (CCL-NLSIU), Ms. Shraddha Chaudhary, CCL-NLSIU, Dr. Bincy Wilson, CCL-NLSIU, Ms. Monisha Murali, CCL-NLSIU, Ms. Sruthy Sriram, II Year, B.A.LLB. (Hons.), NALSAR, Ms. Rovina Bastian, Karnataka State Police– Gender Sensitisation Unit and many other stakeholders across the country, for their valuable advice, suggestions and ideas in improving the content and methodology in quality and presentation

We also acknowledge the eminent support of Prof. S.Parasuraman Director TISS (Tata Institute of Social Sciences), Dr. A.P. Maheshwari, IPS, the DG of BPRD as well as Ms. Sundari Nanda, IPS, Ms. Anupama Chandra, IPS, Mr. Pramod Verma, IPS, Mr. Mehmood Akhtar, IPS, Mr. Jitendra Yadav and Mr. V. Tapliyal of BPRD.

We are grateful to Ms. Rakhee Suryaprakash who donated her services as copy editor for this book, treating it as a noble cause in the process of justice delivery to children.

TATA INSTITUTE OF SOCIAL SCIENCES

Deemed to be University since 1964

Prof. PM Nair

Chairperson, Centre for Police Studies and Public Security

PREFACE

As the type, spread, speed and intensity of crimes against children in India are on the rise, new special legislations, along with amendments to the general and substantiate criminal laws, have come up in the recent past to effectively address the specific offences against children, with a view to ensure good governance and proper law enforcement. However, the multiplicity of laws, their uneven knowledge and, above all, lack of skilled application by the police, as well as the other stakeholders involved in the process of justice delivery and prevention, has created an alarming scenario in respect of preventing and combating crimes against children. A need was felt to collectively bring all laws dealing with crimes against children into one reference book, in a user-friendly format, along with the different child-friendly processes prescribed under each of these laws. Accordingly, the Centre for Police Studies and Public Security, a nascent unit in the Tata Institute of Social Sciences, decided to take up this project. The idea was appreciated by stakeholders from different walks of life including police, prosecutors, judiciary, academics, guardians, children, care givers, civil society partners, social workers, etc. Prompt support from Child Investment Fund Foundation (CIFF) came in very handy to move ahead.

This handbook, originally titled ‘Children’s Charter’, and later changed to the present one, is focused on the rights of child victims of crime. It is essentially meant for police officials who are called upon to address the issues of child rights. It is a ready reckoner which hopes to serve as a guide book to help the user decide which law(s) are to be used, when and how to implement the provisions effectively and the skills required in its utilization and implementation. It is a process document, explaining the best methods of ensuring that the rights of child victims are protected. While this is not a compilation of laws, it is a tool which will help one gain a complete picture of the laws and the latest rulings of the superior courts in India, as well as the best practices, and help in deciding how to

invoke them in the best possible manner while dealing with offences against children.

It is a book linking the text to the context. And that is the intended purpose too, by bringing in the laws and rulings into context and helping the stakeholders ensure rule of law.

The book has been written keeping in view the requirements of the officer in charge of a police station, the investigating officers, the prosecutors, the Child Welfare Police Officer, and other stakeholders who support and facilitate investigation and related aspects as well as prevention of violence and exploitation of children. It is a tool to enhance and fine- tune the skills of the end user in the application of the laws, rules, rulings, and related provisions. It is drafted in a user-friendly manner. This book can also be of immense help to all those who work on child rights, all those who are concerned with child rights and even children who need support or help, being subjected to or vulnerable to exploitation.

It is a novel venture, hence there can be shortcomings. We also welcome suggestions for improvement.

Dr PM Nair

April 2018, Mumbai

V N Purav Marg, Sion Trombay Road, Mumbai 400 088. Website: www.tiss.edu

Tel: 022 25525200, 25525201, email: nairpm@hotmail.com, pm.nair@tiss.edu

Section I – INTRODUCTION AND COMMON ASPECTS

1. THE CONTEXT

The children of India have constitutional and legal rights for their care, protection, treatment, development, protection, rehabilitation, and re-integration. These rights are violated when children are subjected to abuse, exploitation, and violence.The police is the first responder to such a child, and plays the most crucial role in setting in motion the justice delivery system after a crime is reported or detected or when such a crime is likely to happen. The response and attitude of the police towards the child can encourage the child to participate without fear in the investigation process and later during trial, which also impacts the proper rehabilitation and reintegration of the child back into the family, and/ or society. It can also encourage more child victims and/ or their families to come forward with reports of crimes and significantly, ensure that the “process does not become the punishment” for victims.

Knowledge of child protection laws in letter and spirit is one part of the investigation work, but appropriate skills such as, those of interviewing children in a developmentally appropriate and age-sensitive manner, being alert to basic needs of children, recognizing trauma and basing decisions on where and when to interview child victims, etc., whilst dealing with child victims are equally important, and need to be actively acquired and harnessed by all Investigation Officials.

Thousands of children are being trafficked for labour or forced into various forms of commercial sexual exploitation, or are otherwise subjected to abuse, criminal neglect, and exploitation. According to the Census of 2011, about 8.2 million child labourers in the age group of 5-14 years were engaged in various occupations. NGOs however, estimate the number to be 90 million.²

A study by the Ministry of Women and Child Development³ estimates that there are about three million women in prostitution in the country, of which an estimated 40% are children, as there is a growing demand for very young girls to be inducted into prostitution. UNICEF also estimates that 1.2 million children are victims of sex trafficking in India.⁴ According to an ILO estimate, 15% of the country’s estimated 2.3 million persons in prostitution are children.

2 International Labour Office. 2013.

Domestic Workers across the World:

Global and Regional Statistics and the Extent of Legal Protection (Geneva). p. 14.

3 India Country Report-To Prevent and Combat Trafficking and Commercial Sexual Exploitation of Children and Women, presented at World Congress III – Against Sexual Exploitation of Children and Adolescents (Rio de Janeiro, Brazil, November 2008).

4 US Department of State, Country Reports on Human Rights Practices for 2012. Both pictures are from UNICEF India website.

Source: UNICEF India⁶

With respect to child labour, child prostitution, child sexual abuse, and other crimes against children, the reported numbers are estimates, and not actual figures. The numbers of cases filed as can be gleaned from the Crime in India annual reports of the National Crime Record Bureau, also do not reflect the full extent of violence against children, as a significant number of cases are never reported and do not make it to the criminal justice system.

	Data on Crimes Against Children based on Crime in India, 2016
Laws		Cases Reported in 2016	Number of Victims	Charge-sheeting rate	Investigation Pendency Rate	Conviction Rate
Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (CALPRA)		204	384	94.6%	63.4%	47.1%
Immoral Traffic (Prevention) Act, 1956		56	69	100%	58.5%	10.5%
Human Trafficking (Section 370 & 370A ofIndian Penal Code)		340	763	85.2%	44.8%	18.2%
Prohibition of Child Marriage Act, 2006		326	327	84.6%	42.1%	14.7%
Protection of Children from Sexual Offences Act, 2012		36022	36321	94.2%	31.8%	29.6%
 Source: Crime in India, 2016; National Crime Records Bureau

6 http://www.unicef.in/Whatwedo/21/Child-Labour

1. CONSTITUTIONAL, STATUTORY, AND INTERNATIONAL OBLIGATIONS TO PROTECT CHILDREN

In the context of India's commitments under its Constitution and under the United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), India is duty bound to take measures to address violation of child rights and provide holistic support to child victims including child victims with disabilities.

A. Constitutional Framework

The Constitution of India contains some specific and exceptional provisions referring to children (and women) and also "prohibits traffic in human beings and forced labour".

Article 15	The State can make any special provision for women and children.	Part of Fundamental Rights; providing discretion to the government to make special laws/ policies and schemes for women and children.
Article 21 A - Right to Education	The State shall provide free and compulsory education to all children of the age of six to fourteen years.	Part of Fundamental Rights; added to the Constitution in 2002. The Right of Children to Free and Compulsory Education Act, 2009 was enacted in pursuance of Article 21 A of the Constitution.
Article 23	Prohibition of traffic in human beings and forced labour.	Part of Fundamental Rights; only two Articles in the Constitution in 1950, listed as 'offences' and which, provided for 'punishment' were - trafficking and untouchability.
Article 24	Prohibition of employment of children below the age of fourteen years in factories, etc.or any other hazardous employment.	Part of Fundamental Rights; protecting children from performing hazardous labour.
Article 39	The State shall, direct its policy towards securing- that the health and strength of workers, men and women,	Article 39 is not a Fundamental Right, but is a part of the Directive Principles of State Policy - directing the State towards

	and the tender age of *children* are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.	formulating its policies protecting children from labour.
Article 39	State should ensure that *children* are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.	This provision is relevant to protecting children from all forms of exploitation.

B. Statutory Framework

The Indian Penal Code, 1860 (IPC) contains the definition of “trafficking of persons”, which was added in 2013. There are other provisions dealing with buying and selling of girls for prostitution, employing of a trafficked person, dealing in slaves, and sexual offences, etc. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a special law that criminalizes penetrative, touch, and non-touch based sexual offences against children and also mandates the establishment of Special Courts and procedures for trial of offences involving children.

The Juvenile Justice (Care and Protection of Children) Act, 2015(JJ Act, 2015) is the core law relating to ‘children in need of care and protection’and children in conflict with the law, providing for care, protection, development, treatment, social re-integration, and rehabilitation through a child-friendly approach. It defines the term “child-friendly” to mean “any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child.”⁷ This Act provides for setting up of institutional mechanisms to adjudicate and provide services to children in a comprehensive and holistic manner. It also specifies certain offences against children.

The Preamble of JJ Act, 2015 highlights the objectives of a ‘child-friendly’ approach and ‘best interest of the child’ principle in their care, protection, development, treatment, and social re-integration. The Principles underlined in Section 3, JJ Act, 2015, for guiding the juvenile justice system are as follows –

Principle of presumption of innocence – Any child, who is a ‘child in conflict

⁷ JJ Act, 2015, Section 2(15).

with law’ shall be presumed to be innocent of any mala fideor criminal intent up to the age of eighteen years.

Principle of dignity and worth – All children, whether a child victim or a child in conflict with law shall be treated with equal dignity by the police, without showing any bias or prejudice, towards the situation that the child is facing. For example, a child seen begging on the road junction cannot be treated as a ‘beggar’ at par with an adult. The child shall be treated as a person who was made to beg by somebody.
Principle of participation – The police shall hear the child and pay due respect to the wishes of the child – such as, when the child wants the police interview to discontinue, or the child expresses a desire to go home instead of to a Child Care Institution. Having heard the child’s views, the police should take them consideration in the totality of the situation and take decisions accordingly, with due regard to the age and maturity of the child.For example, a trafficked child or a child subjected to sexual abuse may change his statement a few times, depending on its capacity to recall the events. This is natural and cannot be construed as concoction or ‘padding’ as one would attribute to an adult victim.
Principle of best interest – “All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.”The child, and the child alone should be the focal point of all decision making, vis-à-vis the other adults who might be affected by those decisions. For example, the police cannot insist on the institutionalization of a child victim of a sexual offence only because her family members may pressurize her to turn hostile. This is because separating her from her family when she has undergone abuse and needs their support may not be in her best interest. Separation, may however, be considered by the Child Welfare Committee (CWC) where the perpetrator is a family member.
Principle of family responsibility – The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be. For instance, if a child begging on the street is living with the parents/ relatives who also work on the street, it may probably not be prudent to separate and immediately produce the child before the CWC. Action in this case could also involve an NGO who could counsel the family and take the child off the street from begging and into a school, whilst continuing to live with the family.
Principle of safety – “All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.” Children are sometimes

re-victimised in the child care institutions by the staff, or by other senior children. The police should ensure the child’s safety, within this care and protection system. It would also entail ensuring their safety and protection from the accused during an on-going investigation or trial.

Positive measures – “All resources are to be mobilised including those of family and community, for promoting the well-being, facilitating development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act.” Through community policing, by mapping the vulnerable populations and communities within cities, towns and villages, the police can prevent the occurrences of crimes against children and also of children committing offences.
Principle of non-stigmatizing semantics – “Adversarial or accusatory words are not to be used in the processes pertaining to a child.” During interviewing a child victim, especially in cases of sexual offences, the police should not use language that attributes blame to the child for the crime. Similarly, when a child is alleged to have committed an offence, the police should not use language which, labels the child as a criminal. For example, a child rescued from a brothel can never be called a “child prostitute” as she was never one, whereas the fact is that she has been prostituted and victimized.
Principle of non-waiver of rights – The child should get the benefit of all provisions of the JJ Act, and other fundamental rights as laid down in the Constitution. No authority, which is statutorily bound to take a decision for the child, can claim that these procedures need not be undertaken or be deemed to have been waived either by the child/ or the family/ guardians.
Principle of equality and non-discrimination – There shall be no discrimination by the police against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. For instance, the police should not automatically assume that a child from a rich family would be more intelligent and can participate in the justice process, but a child who lives with the parents on the street, need not be asked for his/ her opinion with respect to decisions affecting the child.
Principle of right to privacy and confidentiality – The police should for instance, ensure that the child’s identity is never disclosed to the media, by the media or by anyone so as to identify the child – either as a victim or as a child in conflict with the law. The police should also maintain the confidentiality of their records with respect toprocesses under the JJ Act, for every child.
Principle of institutionalization as a measure of last resort – Although it is for the CWC or the Juvenile Justice Board (JJB) to order for

institutionalization of the child brought before them, the police may also remember that taking the child away from the family and placing it in an institution may not always be the best course of action.

Principle of repatriation and restoration – Again, this is a point to be decided by the CWC or the JJB respectively, and is the ultimate responsibility of the Child Care Institution where the child is staying, but the police should be aware of this principle that the child has a right to be re-united with his/ her family at the earliest, if it is in the best interest of the child.
Principle of fresh start – All past records of any child under the Juvenile Justice system should be erased except in special circumstances, as is provided for under the law.The police should not disclose records of children for character certificates in cases that are closed or disposed of.⁸
Principle of diversion – Measures for dealing with children in conflict with law without resorting to judicial proceedings are to be promoted by the JJB, unless it is in the best interest of the child or the society as a whole.
Principles of natural justice – Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act. The Juvenile Justice Model Rules of 2016 provides that non-compliance with the Act and the Rules by any officer/institution, statutory body, etc., can invite action by the State Government againstsuchofficer/institution, statutorybody etc., afterdueinquiryandsimultaneouslymake alternative arrangements for discharge of functions for effective implementation of the Act (Rule 93).

On child labour, the two most significant laws are the Bonded Labour System (Abolition) Act, 1976 and the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (CALPRA), as amended in 2016. The Bonded Labour Act provides for the abolition of bonded labour system, which was historically practiced in India in several forms and continues to be practiced. The CALPRA prohibits the engagement of children in certain employments and regulates the conditions of work of adolescents in certain other employments. The CALPRA prohibits completely the employment of children below 14 years in any occupation or process (two exceptions) and prohibits the employment of adolescents (14-18 years) in any hazardous occupations or processes.

Dealing with trafficking and the organized crime of commercial sexual exploitation and prostitution of women and children is the Immoral Traffic (Prevention) Act, 1956, along with POCSO Act,IPC, and the Prohibition of Child Marriage Act, 2006.

⁸ JJ Act, 2015, Section 74(2).

A. International Obligations

In additional to the constitutional and statutory framework, the police must also be aware of the international legal framework relating to child rights. The primary international instrument with respect to children is the United Nations Convention on the Rights of the Child [UNCRC] adopted by the UN General Assembly in 1989. The UNCRC was acceded by India in 1992 thereby effectively agreeing to give effect to all the norms and standards contained in the provisions of the Convention. India has also ratified two additional protocols to the UNCRC dealing with the sale of children, child prostitution and child pornography;⁹ and on children involved in armed conflict.¹⁰ Article 1, UNCRC defines child to mean “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

The JJ Act, 2015 and the POCSO Act, 2012 were both enacted in pursuance of India’s obligations to the UNCRC and a specific reference to this is stated in the preamble of these legislations.

The UNCRC contains four core guiding principles integral to the rights of the child, which are also reflected in Section 3, JJ Act, 2015. They are:

Article 2: Principle of Non-Discrimination which entitles children to exercise their rights and obligates the States to respect and ensure their rights without discrimination of any kind.
Article 3: Principle of Best Interests of the Child which requires the child’s best interest to be a primary consideration in all actions concerning children by public, private institutions, courts, administrative authorities, or legislative bodies.
Article 6: Right to Life, Survival and Development which requires States to recognise every child’s inherent right to life and ensure the survival and development of the child to the maximum extent possible.

Article 12: Respect for the views of the child which requires States to ensure that a child capable of forming views has the right to express those views freely in all matters affecting the child and further that the views are given due weight in keeping with the child’s age and maturity.

B. Domestic Authorities and Structures Relevant to Children

9 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography, 2002

10 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2002

Key Statutory Bodies for the protection of child rights

JJB

CWC

Special Court/ Children’s Court

Sessions Court

Magistrate

Family Court/ District Court

Child alleged to be in conflict

with the law

Inquiry under section 14 of the JJ Act, 2015.
Preliminary assessment under section 15 of the JJ Act, 2015 in case of children between the age of

16-18 years alleged to have committed a heinous offence.

Dealing with cases that may be transferred by the JJB.

Trial in cases where a matter against child alleged to be in conflict with the law has

been transferred to the Children’s Court pursuant to the order of the JJB under section 18(3)

of the JJ Act, 2015.

Hearing appeals against decisions of the JJB under Section 101(1), JJ Act, 2015.

Hearing appeals against the decision of the JJB after a preliminary assessment under Section 101(2), JJ Act, 2015.

Child in need of care and protection

Transfer cases of children found innocent and in need of care and protection to the CWC under Section 17(2), JJ Act, 2015.

Inquiry under section 36 of the JJ Act, 2015.
Decide on matters related to placement, care, protection,

rehabilitation, etc.

Hearing appeals against decisions of CWC except decisions pertaining to aftercare, sponsorship, and foster care under

JJB

CWC

Special Court/ Children’s Court

Sessions Court

Magistrate

Family Court/ District Court

in relation to such child.

Section 101(1),

JJ Act, 2015

Child victim of sexual offences

Inquiry in cases where the accused is a child.

Receive a report regarding the incident from the police under Section 19(6), POCSO Act.
May appoint a support person to aid the child and family during pre-trial and trial processes under Rule 4(7).
Decide whether child should be separated from family in cases where the offence has been committed or is likely to be committed by a person living in the same or shared household as the child, or the child is living in a child care institution and is without parental support or is without home

Trial in a child-. friendly manner
Ordering of compensation for the child victim.

Recording statement of child under section 164 of the CrPC.

	JJB	CWC	Special Court/ Children’s Court	Sessions Court	Magistrate	Family Court/ District Court
		and parental support under Rule 4(3), POCSO Rules.
Child victim of trafficking	Inquiry in cases where the accused is a child.	Where the victim is also a child in need of care and protection, the CWC may ask the child to be produced before it for inquiry and placement. Pass orders related to rehabilitation and re-integration.	Where the trafficking involved sexual abuse of the child, the Special Court shall conduct the trial in a child- friendly manner as per the POCSO Act, 2012 and POCSO Rules, 2012.	Trial against the offender	A Magistrate upon receiving information regar- ing prostitution being carried out in a brothel, may order the police to conduct a search and rescue. A victim of traff- icking rescued under the ITPA must first be produced before a Magistrate who shall conduct an inquiry as per section 17(2) of the ITPA and immediately make an order for her immediate safe custody.
Victim of child labour		Where the victim of child labour is also a child in need of care and protection, the			A Magistrate may upon application compound a first time

JJB

CWC

Special Court/ Children’s Court

Sessions Court

Magistrate

Family Court/ District Court

CWC may ask the child to be produced before it for inquiry and placement.

offence committed by the parent or guardian of the child under section 14D of the CALPRA.

Victim of child marriage

Where the victim is also a child in need of care and protection, the CWC may ask the child to be produced before it for inquiry

and placement.

Upon receipt of information regard- ing a child marriage being arranged or about be solem- nised, a Magistrate shall issue an injunction against any person includ- ing a member of

an organisation or an association of persons probibiting such marriage.

The above injunction may also be issued suo motu upon any reliable information received by the Magistrate.
The Magistrate may stop or prevent a child marriage from being solemnized through any approp- riate means including the use of minimum force.

A Family Court (or in the absence any civil court) may annul a child marriage as per section 3 of the PCMA, 2006
The Court shall make appropriate

orders regarding maintenance, custody of children, etc.

Human Rights Institutions for Children

The National Commission for Protection of Child Rights (NCPCR), with its counterparts in the States, is a statutory human rights institution set up under the Commissions for Protection of Child Rights Act, 2005. The NCPCR and the State Commission for Protection of Child Rights (SCPCRs) mandate is to ensure that all laws, policies, programmes, and administrative mechanisms are in consonance with the child rights perspective as enshrined in the Constitution of India and international Conventions ratified by India. The CPCRs are also specifically mandated to monitor the implementation of the JJ Act, 2015 and the POCSO Act, 2012, among other laws related to children.

In addition to the legal framework, the Ministry of Women and Child Development along with State Governments and Union Territories, implements the Central Government Scheme on child protection called the Integrated Child Protection Scheme (ICPS), which provides financial and administrative support for implementation of the JJ Act, 2015.

1. CHILD VICTIMS AND THE CRIMINAL JUSTICE SYSTEM

Crimes Against Children:¹¹ In 2016, total of 1,06,958 cases of crimes against children were reported compared to 94,172 cases during 2015, showing an increase of 13.6%.A total of 1,11,231 child victims entered the criminal justice system in 2016. The overall conviction rate for crimes against children in 2016 was 30.7% and the pendency rate was a staggering 89.6%.

In percentage terms, major crime heads under ‘Crime Against Children’ during 2016 were kidnapping & abduction (52.3%) and cases under the Protection of Children from Sexual Offences Act, 2012 (34.4%) including child rape.

In 2016, a total of 36,321 children were victims of sexual offences of which 19,920 children i.e., 54.84% were victims of child rape under Section 376 IPC/ Section 4 & 6 of the POCSO Act and 12,329 children i.e., 33.94%were victims of sexual assaults under Sections 8 and 10, POCSO Act/Section 354 IPC.

In child labour cases, only 8 out of 385 cases were convicted. The conviction rate for cases of child trafficking under the ITPA stood at 10.5%, while the pendency rate was a staggering 95.3%.¹²

Under the Prohibition of Child Marriage Act 2006, 236 cases were tried with total number of 10 convictions only.

11National Crime Record Bureau, Crime in India, 2015

12 National Crime Record Bureau, Crime in India, 2016.

The conviction rate and pendency of cases for crimes against children from the Crime in India Report of 2016, is indicative of the challenges in the existing response to crimes against children.

2. WHO IS THE HANDBOOK MEANT FOR?

This Handbook has been specifically drafted for law the police, particularly for investigating officers, Child Welfare Police Officers, and other police officers who interact with child victims in different capacities, keeping in view their roles and responsibilities on child protection in general and particularly under the special laws on children. The Handbook deals with ‘child in need of care and protection’ and ‘child victim’ of crime/ violence, and is not oriented towards information on ‘child in conflict with law’, which involves a different legal procedure under the JJ Act, 2015. However, it must be borne in mind that the JJ Act, 2015 recognises that child in conflict with the law can also be a child in need of care and protection and empowers the Juvenile Justice Board (JJB) to transfer them to the Child Welfare Committee (CWC) so that they can be treated as children in need of care and protection. For instance, a child accused of trafficking other children could be a victim of trafficking herself. Instead of being treated as child in conflict with the law, she could be transferred by the JJB to the CWC.

The ‘USP’ of this Handbook is that it is not purely academic, and that it covers “Theory to Practice”, providing a process driven approach for implementing laws. Wherever essential, it provides step-by-step processes in flow charts, is practical to use, drafted in a user-friendly manner, and is oriented to child rights and victim-centric approach. It is a book that links the text to the context.

Although the Handbook is primarily meant for use by the police, other stakeholders, namely, prosecutors, judges, Child Welfare Committees (CWC), District Child Protection Units (DCPU) and all other child welfare institutions (governmental and non-governmental), academics, media, etc. will find it useful to understand the role and responsibilities of the police in implementing various laws that are applicable to different types of crimes against children. The stakeholder mapping and convergence presented in this Handbook, in fact will also provide guidelines to the other stakeholders on the areas of co-ordination and co-operation with the police in providing comprehensive services to child victims towards their welfare, rehabilitation and reintegration. Undoubtedly, this process-oriented book will be of immense value to all concerned with child rights including parents and guardians. Although the text is not child-friendly, it can be referred to by children under the guidance of adults to understand the role of the police vis-à-vis them.

3. HOW TO USE THE HANDBOOK?

The Handbook has three distinct sections. The first section is the introductory

part which lays out details with respect to its content, the intended beneficiaries, and the layout of the various Chapters within each Section. The first Section also contains some standalone segments of information, which are common to all types of crimes against children and relevant to child victims (such as, ‘age determination’, ‘communication with child victim-witness’, etc.). These have been collated and distinctly presented for ease of reference to avoid repetition of the same content in multiple chapters under Section II.

The second Section has several chapters based on the different types of crimes and violence against children. Although each chapter is self-sufficient in its content, relevant cross-references have been provided only to avoid too much repetition of content throughout the Handbook. Each chapter provides the context, the legal framework for that crime, the offences and the punishments, the step-by-step roles and responsibilities of the police officials at various stages, and the administrative and institutional framework such as, those provided under the JJ Act, 2015 and the Integrated Child Protection Scheme (ICPS). Each chapter has answer to FAQs on common queries relevant to duty bearers and/ or anyone else referring the Handbook. Every chapter has annexures, containing detailed tables of the offences and punishments, and relevant court judgments for reference by police officials.The electronic version will have bookmarks in respect of themes, concepts, legal provisions, practical aspects of law enforcement etc. so that the user can have better and easy access.

4. USE OF TERMINOLOGY

Trafficking in Persons – The terms ‘Trafficking in Persons’ and ‘Human Trafficking’/‘Child Trafficking’ have been used interchangeably in this Handbook. The definition provided in Section 370, IPC¹³ is the reference point.

13Section 370(1), IPC states: Trafficking of persons

Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers, or

(e) receives, a person or persons, by —

using threats, or
using force, or any other form of coercion, or
by abduction, or
by practising fraud, or deception, or
by abuse of power, or
by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received,
commits the offence of trafficking. Explanations-

The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
The consent of the victim is immaterial in determination of the offence of trafficking

Child Victim – The term ‘child victim’ is used in the Handbook to refer to a child against whom an offence/ violence has been committed.The term ‘victim’ has generated much debate in the context of sexual exploitation and violence against children; many argue that it implies powerlessness, rather than the resilience of the victim and therefore, prefer to use the term ‘survivor’ sinceit is more positive and draws attention to resistance, coping and survival. However, in the area of human rights and protection, the term ‘victim’ is used to refer to someone experiencing injustice for which the perpetrator is responsible. It indicates that the person or persons experiencing human rights violations have the right to protection, assistance and reparation.Therefore, this Handbook, which focuses on the duties of the police and responses uses the term ‘victim’ to highlight the wide-ranging rights of the child victim to an efficacious justice delivery mechanism, punishment of the offender and comprehensive protection and rehabilitation of the victim.

Section 1.1 – Child-friendly process of investigation and care: General norms

CWPO and SJPU Child Welfare Police Officer

Recognizing the need for a dedicated police officer to deal with offences and matters concerning children, the JJ Act, 2015 requires at least one officer in every police station, not below the rank of an assistant sub-inspector, “with aptitude, appropriate training and orientation” to be designated as the Child Welfare Police Officer (CWPO).¹⁴ The mandate of the CWPO under Section 107(1), JJ Act, 2015 is to “exclusively deal with children either as victims or perpetrators, in co- ordination with the police, voluntary and non-governmental organisations.”

Special Juvenile Police Unit (SJPU)

With a view to coordinate police functions related to children, the JJ Act, 2015 requires State Governments to constitute SJPUs in each district and city, headed by a police officer not below the rank of a Deputy Superintendent of Police or above.¹⁵ The SJPU should consist of all designated Child Welfare Police Officers and two social workers with experience of working in the field of child welfare.¹⁶ At least one social worker should be a woman.¹⁷ The SJPU also includes Railway Police dealing with children. ¹⁸ The initiative to constitute a SJPU can be taken by the Director General of Police in the State.

In border areas, it would be advisable to include representation of border security forces like the BSF, ITBP etc. as the case may be.

14 JJ Act, 2015, Section 107(1).

15 JJ Act, 2015, Section 107(2).

16 JJ Act, 2015, Section 107(2).

17 JJ Act, 2015, Section 107(2).

In districts where SJPUs are not constituted and Child Welfare Officers have not been specifically designated, it becomes incumbent on the regular police force to carry out the duties of the SJPU and CWPO to the fullest extent. The realisation of the rights of children must not be compromised in any manner for the want of specific designation of these posts. It is thus important for all police officers to be aware of their specific duties and functions in respect of children coming in contact with the legal system.

Supreme Court’s direction in Sampurna Behura v. Union of India,

(2018) 2 SCALE 209

“It is important for the police to appreciate their role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children. There is therefore a need to set up meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In this context, it is necessary to clearly identify the duties and responsibilities of such Units and Officers and wherever necessary, guidance from the available expertise, either the National Police Academy or the Bureau of Police Research and Development or NGOs must be taken for the benefit of children.”

1.1.1. Facilitation of Care & Protection

The JJ Act, 2015, entrusts the care and protection of children in need of care and protection (CNCP) primarily with the CWC. Nevertheless, other stakeholders in the system are also entrusted with certain duties towards ensuring that the child receives timely and appropriate care and protection. The police, being one of the key actors coming in contact with children, are mandated to follow certain protocols with regard to children in need of care and protection.

Who is a child in need of care and protection?

The term “child” is defined under Section 2(12), JJ Act, 2015, to mean “a person who has not completed eighteen years of age.” A police official coming in contact with a child must prima facie ensure that the child is in fact a ‘child in need of care and protection’ as that will require them to produce such a child before the CWC. It is pertinent to take note that the duty to provide care and protection to children is an integral function of the police commensurate with other official duties. The below table lists the categories of children who are considered to be ‘children in need of care and protection’ as per the JJ Act, 2015.¹⁹

Children in need of care and protection

Children living in abusive conditions

children found working in contravention of labour laws
child found begging
child victim of or affected by any armed conflict, civil unrest or natural calamity
child living with a person who has injured, exploited or abused or neglected the child or violated any law passed for protection of children.

Children in danger of abuse

child living with a person who has threatened to kill, injure, exploit or abuse the child with reasonable likelihood of the threat being carried out.
child living with a person who has killed, abused, neglected or exploited some other child and there is likelihood that that the child in question may be killed, abused, exploited or neglected
child who is likely to be abused, tortured or exploited for sexual abuse or any illegal acts
child who is found to be vulnerable and likely to be inducted into drug abuse or trafficking
child who is likely to be abused for unconscionable gains
child who is at imminent risk of marriage before attaining the age of marriage and the child's parents, guardians, family members, etc. are likely to be responsible for solemnisation of such marriage.

Children without support

child without parents or anyone to take care of her/ him
Abandoned or surrendered child
Missing or runaway child whose parents cannot be found after reasonable enquiry
child found living in the street
child found without any home or any residence
child found without any means of sustenance
child with unfit or incapacitated parents or guardians
child who is mentally ill, mentally or physically challenged, suffering from terminal or incurable disease without fit parents or guardians or anyone to support or look after them.

As stated earlier, while the JJ Act, 2015 categorises children in to 'child in conflict with the law' and 'child in need of care and protection', it is pertinent to realise that this is not a strict differentiation. On many occasions, a 'child in conflict with the law' is also a 'child in need of care and protection' and requires assistance for rehabilitation and healing. For instance, children accused in drug-related offences are also victims of drug abuse. In several cases, children are used by adults to aid in commission of crimes. The police must ensure to extend care and protection to all children without discrimination irrespective of the circumstances of the case during the course of their duties.

Procedure

The brief process in ensuring care and protection of children is provided below. Where a police officer is of the belief that a child is in need of care and protection

In re: Exploitation of Children in the State of Tamil Nadu²⁰

In this case, the Supreme Court took suo motu cognizance of a newspaper article that exposed the poor state of orphanages in Mahabalipuram (Tamil Nadu) with several incidences of child sexual abuse within the institutions as well as incidences of children being used to provide sexual services to tourists. The article also exposed sexual abuse against children in educational institutions including government schools.

While assessing who a ‘child in need of care and protection’ included, the court observed that the definition in the JJ Act, 2015 excluded certain categories of children. The court in this regard opined that the definition must not be treated as an exhaustive list and be the basis of excluding certain children. In this regard the court stated:

“[W]e are of the view that since the JJ Act is intended for the benefit of children and is intended to protect and foster their rights, the definition of a child in need of care and protection must be given a broad interpretation. It would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition. Beneficial legislations of the kind that we are dealing with demand an expansive view to be taken by the Courts and all concerned.”

Observing the above the court concluded that:

“[T]he definition of a child in need of care and protection given in Section 2(14) of the JJ Act should be given a broad and purposeful interpretation – it ought not to be treated as exhaustive but illustrative and furthering the requirements of social justice…[I]t must also include victims of sexual abuse or sexual assault or sexual harassment under the POCSO Act as also victims of child trafficking. Such children must also be given protection under the provisions of the JJ Act being victims of crime under the POCSO Act and the Immoral Traffic (Prevention) Act, 1956.”

as per section 2(14) of the JJ Act, the officer has three primary obligations with regard to care and protection of children:

a. Produce the Child before a Child Welfare Committee

Any police officer or the special juvenile police unit or a designated Child Welfare Police Officer coming in contact with a child in need of care and protection

20 WP 102/2007 [Supreme Court], Decided on 5 May 2017.

must produce the child before the Child Welfare Committee within 24 hours.²¹ The child victim may be recovered from:

the scene of crime;
home of the child;
under the care of an NGO;
in a child care institution;
on the street;
left abandoned at a place;
any other place;
appearing before the police by himself/herself.

Production before the CWC

Who can produce a child before the CWC under Section 31, JJ Act, 2015

any police officer or SJPU or a Child Welfare Police Officer
any officer of the DCPU
any public servant
Childline services or any NGO or agency recognized by the state government
any social worker or public spirited citizen
by a child himself
any Child Welfare Officer or probation officer
any nurse, doctor or management of a nursing home, hospital or maternity home.

Mandatory Reporting Obligations

Where any individual, police officer or functionary of any organization, nursing home, or maternity home finds and takes charge of a child who appears to be abandoned or lost, an orphan, or without family support, they must within 24 hours give information to the Childline Services, the nearest police station, the Child Welfare Committee, or the District Child Protection Unit, or hand over the child to a registered child care institution.²² This information is to be uploaded on a portal as specified by the Central Government or the CWC or the DCPU.²³

21 JJ Act, 2015, Section 31.

22 JJ Act, 2015, Section 32(2).

23 JJ Act, 2015, Section 33.

24 JJ Act, 2015, Section 34.

Non-reporting is an offence under the Act²⁴ and the offender is liable to be imprisoned for a period of up to six months or fine of Rs. 10,000 or both.²⁵

Interim Care and Protection

Apart from the above obligations, the police are required to provide interim care and protection while having custody of the child. The JJ Act and Rules does not expressly provide for the obligations of a police officer in this regard, however, the obligations with regard to child in conflict with the law, may also be applied in case of children in need of care and protection. The relevant obligations in this regard are extracted below:²⁶

In no case must a child be kept in a lock-up or jail or along with an adult accused person.
The transfer of the child to a CWPO from the nearest police station should not be delayed.
In no case must a child be handcuffed or fettered in any manner.
The child should be promptly informed regarding the circumstances in which he is being taken under care of the government.
Appropriate medical assistance where necessary should be provided by the police.
Assistance of an interpreter where required should be provided.
Food should be provided to the child.
No child victim should be interviewed in the police station pursuant to the proviso to Section 160(1), Cr.P.C.
The child should not be made to sign any statement.
The child must not be coerced or treated in a cruel and degrading manner.
The police should ensure that there is no contact between the accused person and the child.²⁷

Note must also be taken of Rule 93 of the Juvenile Justice (Care and Protection of Children), Model Rules, 2016 (Model Rules) which states that the State Government can take action against any officer/institution/statutory body who fails to comply with the provisions of the JJ Act, 2015 and the Rules framed thereunder.

25 JJ Model Rules, 2016, Rule 8(3).

26 JJ Model Rules, 2016, Rule 86(8).

27 JJ Model Rules, 2016, Rule 8(3).

Child-friendly Police Stations

In addition to the above mandates, the NCPCR has also issued Guidelines in respect of Child Friendly Police Stations.²⁸ These Guidelines offer guidance in respect of setting up child-friendly police stations, procedure to be followed in respect of children in conflict with the law, and the procedure to be followed in respect of children in need of care and protection (CNCP).

In respect of CNCP, the guidelines provide the following protocols to be observed:²⁹

Behaviour and Conduct

The police officers interacting with the child should take care of their body language, gestures, eye movements, expressions and tone of speaking should be aimed at making the child feel comfortable and secure and not intimidate the child in any way.
The police officer interacting with the child should behave at all times as a well wisher of the child and keep the best interest of the child uppermost as the basis of all their actions.
In no circumstances should bad, abusive or negative language be used with the child.
The police officer interacting with the child should not violate the personal space of the child and should not have physical contact with the child, as far as possible.
The police officer should not cause any physical or mental suffering to the child.
The police officer interacting with the child should not consume any form of tobacco or any other addictive substance while interacting with the child.
The police officer should not talk on the mobile phone or check it for other communication during interaction with the child.
The police officer should not act in aggressive manner in the presence of child.
The police officer interacting with the child should have requisite knowledge of child related legislations.

28 Guidelines for Establishment of Child Friendly Police Stations: Laws Prescribing ‘Child Friendly’ Procedures, Processes, Conduct and Establishments, National Commission for the Protection of Child Rights [NCPCR], available at http://ncpcr.gov.in/showfile.php?lang=1&level= 1&&sublinkid=1307&lid=1526

29 Id. at pg 15.

Practice and Processes

All procedures should be followed keeping in mind the child's self-respect and dignity.
The Child Welfare Police Officer (CWPO) should be in civil dress during interactions with the child.
It should be ensured that the child is not kept at the police station overnight under any circumstances.
The child's privacy and confidentiality of personal details should be maintained at all times.
An F.I.R should be filed within 24 hours in case of a child found missing. In cases of children missing for more than 15 days, a case of trafficking should be registered.
Timely and dedicated inquiry should be made to trace the parents or families of children found lost.
The police officer interacting with the child should listen carefully and respectfully to everything the child says and should consider it carefully.
A regular case diary for every child should be maintained.
It should be ensured that the identity of the child - name; address, parent's name, name of the school etc., are not disclosed to or published by the media.
The statement of the child should be recorded in a polite manner, keeping in mind the mental state of the child.
When a child is asked to sign any document, it should be explained to him/her in detail what is written in the document and what will be the impact of the child signing it. The child should be informed that if he/she does not agree with what is written, he/she can say what modification needs to be made. Assistance of translator or expert should be obtained whenever necessary.
Availability of a woman police officer/female social worker while interacting with a girl child should be ensured.
Protection to the child victim and her family should be provided.
It should be ensured that there is no contact between the accused and the child victim during the police inquiry and identification of the accused.
Conducive atmosphere should be created before interacting with the child.
The child and his or her family should be informed about the availability of paralegal volunteers and support persons.

It should be ensured that the child's statement is recorded exactly as said by the child in the presence of the child's parents or any other person in whom the child reposes trust or confidence. It should be ensured that the statement of child is recorded by audio-video or electronic means.
It should be ensured that the child is not hungry or thirsty and adequate provisions of food and water should be made if they are.
It should be ensured that there are no instances of mistreatment or misconduct with the child and any complaints in this regard should be acted on promptly.
The child and her family should be made aware of availability of free legal aid services.
It should be ensured that child victims of sexual assault undergo a medical examination as promptly as possible within 24 hours, and medical treatment as required, should be provided to the child as also counselling and psychological support.
Girl child rescued from prostitution or immoral activities should be treated as child in need of care and protection and be produced before the CWC.
The child and her family should be informed about the government schemes available to provide assistance or relief to them, especially the victim compensation scheme.
It should be ensured that child victims of abuse or violence and their families are kept updated about processes and developments in the case.
The child victims and their families should also be informed if a bail application is filed on behalf of the accused and when it is listed.
If a child in need of care and protection cannot be produced before CWC promptly, the child should be kept in a children's home for overnight protective stay and thereafter be produced before CWC.
Victims in POCSO cases who fall in category of CNCP should be mandatorily produced before CWC, in other cases a report should be made to CWC regarding such cases.

1.1.1. Child-Friendly Investigation

In addition to the Cr.P.C., the procedure to be followed by the police/SJPU while handling cases relating to offences against children are dealt with in the JJ Act and Model Rules as well as the POCSO Act and Rules.

RECORDING OF INFORMATION

Cognizable Cases

Any information received related to a cognizable offence must be recorded.
When it is given orally, it must be reduced to writing, be read over to the informant and signed by him.
If the police officer refuses to record the information, the informant can approach the Superintendent of Police who can proceed to investigate into the matter himself or direct his subordinate officers to investigate.³⁰
FIR could also be registered by the police itself on any information received or other than by way of an informant and this has to be duly recorded and the copy should be sent to the Magistrate forthwith.³¹
All information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the General Diary/Station Diary/Daily Diary and the decision to conduct a preliminary inquiry must also be reflected.³²

Non-Cognizable Cases

When information related to the commission of a non-cognizable offence is received, the police officer must enter it into the Daily Diary. This must be transmitted to the Magistrate for further orders.³³

Consequence of failure of the police to record a complaint

Failure of the police to record the alleged commission of an offence under the POCSO Act is an offence punishable with imprisonment which can extend to six months or fine or both under Section 21(1), POCSO Act.
Failure of the police to record information in relation to cognizable offences under Sections 326-A, 326-B, 354, 354-B, 370 370-A, 376, 376-A, 376-B, 376-C, 376-D, 376-E, or 509, IPC is an offence under Section 166-A(c), IPC punishable with rigorous imprisonment for a minimum term of six months which can extend to two years and also attracts fine.

30 Cr.P.C., Section 154.

31 Cr.P.C., Section 157(1) and Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187.

32 Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187.

33 JJ Model Rules, 2016, Rule 54(3).

LODGING OF FIR

On receipt of information in respect of a cognizable offence against a child, the police should register a FIR immediately.³⁴ The JJB can direct the police to register a FIR for offences committed against a child in need of care and protection under the JJ Act, 2015 or any other law in force pursuant to a complaint registered by a CWC.³⁵ The JJB can direct the police to register a FIR for offences committed against a child in conflict with the law under the JJ Act, 2015 or any other law in force pursuant to a complaint.³⁶ The CWC can direct the police to register a FIR in case of complaint of abuse of a child in any child care institution.³⁷

INVESTIGATION

In all cases concerning offences against children, the investigation shall be conducted by the CWPO.³⁸
The investigations should be carried out in accordance with Cr.P.C.
No boy below 15 years or a girl child under 18 years should be summoned to the police station for the purpose of investigation.39
The statement of a victim of a sexual offence under the POCSO Act, which includes boys below 18 years, should be recorded at the place the child resides or the place of the child’s choice.⁴⁰

Consequences of Summoning a Child to a Police Station

Under Section 166-A(a), IPC, if a public servant “knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter”, he can be punished with rigorous imprisonment for a minimum term of six months which can extend to two years and also be liable to fine.

34 JJ Model Rules, 2016, Rule 54(2)

35 JJ Act, 2015, Section 8(3)(l)

36 JJ Act, 2015, Section 8(3)(k)

37 JJ Act, 2015, Section 30(xvi).

38 JJ Model Rules, 2016, Rule 54(4).

39 Cr.P.C., Section 160(1) proviso.

40 POCSO Act, 2012, Section 24(1).

Significant Court Ruling

Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187

The following directions were laid down by a Constitutional Bench of the Supreme Court:

Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
1. Matrimonial disputes/family disputes
2. Commercial offences
3. Medical negligence cases
4. Corruption cases
5. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should

not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry.

Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

1.1.1. Territorial Jurisdiction

Territorial jurisdiction is an important factor that the police must take note of in the course of their duties particularly in respect of filing of FIR and preparing the charge-sheet.

While central laws are in general applicable throughout the territory of India, it is essential to keep in mind that several states have amendments to these laws. For instance, the state of Karnataka recently passed an amendment to the Prohibition of Child Marriage Act, 2006 which renders all child marriages void an initio although the central statute only makes them voidable.⁴¹ Similarly, several states have also enacted amendments to various provisions of the Indian Penal Code. The police must ensure that they aware of these changes within the state while applying them.

In addition to State amendments to central laws, some States have also enacted separate legislations in respect of child rights. A prominent legislation in this regard is the Goa Children’s Act, 2003 [GCA] which deals with a variety of aspects in relation to child rights such as provision for education, health and nutrition; prevention of child abuse, trafficking in children, and child labour; establishment of homes for children; special protection of girl children and differently abled children; etc. The GCA is applicable only in the state of Goa.

Although in general, State laws only have applicability within the particular state, it may be made applicable to even other states through extending statutes. For instance, the Maharashtra Control of Organised Crime Act, 1999 [MCOCA] dealing with organized crime and terrorism was initially enacted for the state of Maharashtra but has been extended to states such as Delhi by the Delhi government. In some states that have not extended the MCOCA to their territory, they have passed legislation modelled after the MCOCA such as the Karnataka Control of Organized Crimes Act, 2000 and the Gujarat Control of Terrorism and Organised Crime Act, 2015.

41 Prohibition of Child Marriage (Karnataka Amendment) Act, 2016, s.2.

Further, Instead of the IPC, the state of Jammu and Kashmir has the Ranbir Penal Code, 1989 which is similar in most respects to the provisions of the IPC excepting a few differences. Similarly, the procedural aspects of criminal law has been dealt with in the Jammu and Kashmir Code of Criminal Procedure, 1989 and the Jammu and Kashmir Evidence Act, 1920. The state of Jammu and Kashmir does not have a dedicated legislation to combat child sexual abuse like the POCSO Act. The laws applicable in Jammu and Kashmir in respect of child protection have been listed below:

Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013
Jammu and Kashmir Child Labour (Prohibition) Act, 2015
The Infant Marriages Prevention Act, 1985

Territorial jurisdiction of laws is a critical aspect of a criminal case and the police must be up to date with regard to laws related to offences against children in that state and should ensure that all laws applicable to an incident are included in the charge-sheet.

1.1.2. Documentation

Documentation and submission of relevant forms are an integral and essential function of the police. Proper and timely documentation is critical to ensure that all key authorities are intimated adequately and preventing loss of information amongst the different authorities fulfilling their role.

The different statutes prescribe a variety of forms and reports to filled and submitted by the police. They key documents required to be prepared by the police are described below:

Sl. No.	Document
1.	First Information Report
2.	Home Verification Report under ITPA
3.	Record book of information received under Section 19, POCSO Act.
4.	Report of incidence of sexual offences to the CWC and Special Court under section 19(6) of the POCSO Act.
5.	Care and Protection Report to the CWC under Section 19(6)

1.1.3. Forensic

The role of forensics can never be under estimated. The entire spectrum of forensic chemistry, physics, biology, serology, psychology, anthropology, sociology, all come alive in the investigation and prosecution of crimes against children.

Further, the role of child psychology, to be precise forensic psychology, assumes importance in many ways. The traumatized child will not be able to communicate properly or even recall the events. The child may be confused, especially with the adult oriented questions put to the child. The child victim may be shocked so much that she/he may not be wanting to recall the events. There may be complex fear psychosis operating in the mind of the child. In an instance, where the rapist was wearing a black shirt, the child became mortally afraid of anything black, including the court room with so many black gowns. There can be several anomalies in the behaviour of thechild. Post-traumatic stress and disorder will prevent the child from even communication the problems to the care givers including doctors. Hence the police officers investigating such crimes need to acquaint oneself on the essentials of child psychology, associate professionals and experts in the entire process of investigation and prosecution. At times, it may be essential that the interview is carried out through the psycho-social expert, as if he/she is a translator coming in to translate when the victim speaks a different language. The Police officers may maintain a updated list of such professionals and request their services as and when required. Schemes like ICPS have funds to meet such expenses too. Care should be taken that the job or professionals be done by them only and cannot be accomplished by al ill trained person or even a half-baked or self-styled counsellor.

Section 1. 2 – How to Assess Age of a Child Victim?

A child may have been rescued from labour or trafficking and brought before the police. A parent may walk in with a child to lodge a FIR alleging sexual abuse. A child victim of a brutal sexual assault may be found abandoned on the roadside by a patrolling police vehicle. After providing immediate comfort to the child and the person accompanying the child, the police may have to prima facie determine the age of the person, particularly to determine whether the victim is indeed a child under the JJ Act, 2015, POCSO Act, 2012, or other relevant laws.

This is crucial because certain child-friendly procedures need to be followed and legal provisions applied if the victim is a child. For instance, if the child rescued from labour appears to be above 14 years, relevant provisions pertaining to exploitation of a child employee under the JJ Act, 2015 and the CALPRA will have to be applied. If a victim of penetrative sexual assault or sexual assault is below 12 years, the offence will be aggravated under the POCSO Act and the relevant provisions will have to be mentioned in the FIR. Further, investigations should be conducted by a CWPO if the victim is a child.

It may be difficult to assess the age when the child appears to be on the borderline. Erring on the side of caution, the police may treat such a person as a child and produce him/her before the CWC or the Special Court under the POCSO

Act, as the case may be. This is because these bodies have the authority under the JJ Act, 2015⁴² and the POCSO Act⁴³, respectively, to determine age.

Process for Age-Determination under Section 94, Juvenile Justice Act, 2015

The above process can be followed by any court before which the age of a person

the victim or the accused – is in question.

Dos and Don’ts for the police

When the victim/offender appears to be a child, treat the person as a child.
If there is a doubt as to the victim or offender’s age, there is no documentary proof available, or there is a dilemma as to whether the person is a child, take the decision in favour of juvenility and produce the person before the CWC, JJB, or the Special Court, as the case may be, for age determination.
Collect documentary proof of age of the victim and the accused promptly.
If the child is studying in a school, collect the birth certificate or matriculation certificate from school. If this is unavailable, birth certificate issued by a Municipal authority or Panchayat should be obtained from the parents.
If no documentary proof is available, inform the CWC or the prosecutor or Special Court so that they can order an ossification test or latest medical age determination test.
Do not ask doctors to conduct an ossification test or latest medical age determination test without seeking an order from the CWC/ Juvenile Justice

42 JJ Act, 2015, Section 94.

43 POCSO Act, 2012, Section 34(2).

Board(JJB)/ Court in accordance with Section 94, JJ Act.

Charges under all relevant laws and provisions related to children should be applied if the victim is below 18 years.
Aggravated charges under Sections 6 or 10, POCSO Act should be filed if the victim of penetrative sexual assault or sexual assault is below 12 years.
If the victim of rape is below 16 years, charge should be filed under Section 376(2)(i), IPC, apart from the relevant provisions under the POCSO Act.

Significant Court Rulings

Jarnail Singh v. State of Haryana, AIR 2013 SC 3467

The Supreme Court held that Rule 12 of the erstwhile Juvenile Justice (Care and Protection of Children) Rules, 2007, which detailed the age determination process for children in conflict with the law should be applied to determine the age of a child victim. It stated:

Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime.

Note: By extension, courts should apply Section 94, JJ Act, 2015 while determining the age of child victims.

Ashwani Kumar Saxena v. State of Madhya Pradesh, AIR 2013 SC 553

The Supreme Court held:

“Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, JJ Board or a Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the JJ Board or the Committee need to go for medical report for age determination.”

Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC 751

The Supreme Court observed that in accordance with the erstwhile JJ Model

Rules, 2007 “…the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available.”

Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796

In this case, the Supreme Court held that the basis on which the entry pertaining to date of birth in a school register was recorded needs to be established for it to have evidentiary value. It held:

“To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.”

State of Madhya Pradesh v. Anoop Singh, 2015 (7) SCALE 445

The High Court had set aside the respondent’s conviction under Section 363, 366, and 376, IPC on the ground that the prosecution had to establish the victim’s age as being below 16 years. There was a discrepancy of two days between the birth certificate and the middle school certificate produced by the prosecution and the victim was more than 15 years and less than 18 years based on the ossification test. The Supreme Court held that the discrepancy was immaterial and applied Rule 12(3)(b) of the JJ Model Rules, 2007. It was of the view that the High Court should have relied on the documents as only in their absence can a medical opinion be sought. The acquittal was set aside.

Eera through Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Ors, Criminal Appeal Nos. 1217-1219 of 2017 (Arising out of S.L.P. (Crl.) Nos. 2640-2642 of 2016)⁴⁴

The issue before the apex court in this case was whether Section 2(d) of the POCSO Act which defines the term”child” should be interpreted to include the mental age of a person so that a mentally retarded person or extremely intellectually challenged person above the biological age of 18 years would come within its ambit. A two-judge bench of the Supreme Court held that such an interpretation would not be tenable because of the purpose of the legislation and the intention of Parliament. The court held “we would be doing violence both to the intent and

44 Decided on 21.07.2017 by the Supreme Court

the language of Parliament if we were to read the word “mental” into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/ penal legislation, we as Judges can extend it only as far as Parliament intended and no further.”

K. Muthu Mariappan v. The State Represented by the Inspector of Police,

Criminal Appeal (MD) No. 98 of 2015⁴⁵

The Madras High Court held that the date of birth could be proved in the absence of a birth certificate and the school certificate would be sufficient proof of date of birth.

Section 1.3 – Communication with a Child

Developing effective communication with child victims, particularly those who have suffered sexual abuse or have been trafficked, is a special skill, which needs focused attention by the police. Recognition of trauma to the child and the duty to be child-friendly along with the need to investigate should go hand in hand, to be able to get all possible information from the child in a child-friendly manner.

Careful collection of information is necessary for the care and protection of children, for identifying their families, for arresting and prosecuting offenders, and for administrating the overall process of recovery, repatriation, social- reintegration and rehabilitation.

Numerous factors make interviewing child victims-witnesses challenging. Often, information must be collected rapidly, and at a time when the child finds it difficult to provide information. The child’s ability to provide sufficient and truthful information is affected by his/her psychological and physical well-being, and issues which create mistrust, fear or silence. Consequently, the information collected is sometimes incomplete or erroneous, and sometimes, improper interviewing techniques have a negative effect on the well-being and rights of the child. ‘Interviewing’ is a learned skill and those carrying out interviews with this particularly vulnerable group of children need to acquire basic techniques of the craft to ensure that their interviewing style is child-friendly, ethical and protective.⁴⁶

1.3.1. Suggested Dos and Don’ts

The below-mentioned dos and don’ts have been authored by Dr. Preeti Jacob, NIMHANS.⁴⁷

45 Decided on 12.06.2015 by the Madras High Court

46 Caring for Children, Case Management and Child Friendly Interviewing, A Resource Pack; UNICEF, Regional Office for South Asia, 2008

47 Dr. Preeti Jacob, M.D. (Psychiatry), Post-Doctoral Fellowship (PDF) and D.M. (Child and Adolescent Psychiatry) and Assistant Professor, Department of Child and Adolescent Psychiatry, NIMHANS. Select Extracts from: Centre for Child and the Law, Law on Child Sexual Abuse in India - Ready Reckoner for Police, Medical Personnel, Magistrates, Judges and Child Welfare Committees (November 2015) pp. 196-216.

The questioning of children for forensic purposes needs to follow a format so that the children can give accurate information to the best of their ability. Given below are some dos and don’ts for the interview procedure as well as questions that can be posed to child victims or witnesses.These have been adapted from several interview protocols.⁴⁸

These would apply to interviews by the police in the course of investigation as well as examination and cross-examination during trial.

Dos and Don’ts Atmosphere

The atmosphere must be child friendly and relaxed. This can be done by having a specific room specially designed to interview children. The room should [ideally] be away from traffic, noise and other potential distractions like phones, fax machines, computers, typewriters, etc. The room should be bright and well lit. It should have a toilet facility. It should have tables and chairs and a cupboard to keep materials out of view. The cupboard can have a few toys and drawing material (such as papers, crayons, colour pencils), which can be used, if necessary. It should preferably have a one-way mirror and a video recording facility so that the interview can be recorded. The environment should be relaxed but not too distracting.
Avoid having police personnel in uniform, the accused or any other person in the room when the interview is being conducted

Scheduling Interviews

Interviews must be scheduled after the child has used the toilet and has had something to eat. It should not be scheduled during the child’s nap-time. It should be scheduled preferably in the morning. If the child is on medication, (for example, anti-seizure medication which can cause drowsiness), the interview should be scheduled for a time when the child is most alert.

Interview Guidelines⁴⁹

The judge/police personnel conducting the interview must introduce

48 Including The Cornerhouse Forensic Interview Protocol (Anderson et al, 2010) , Forensic Interviewing Protocol (Governor’s Task Force on Children’s Justice and Department of Human Services, State of Michigan, 2003), National Institute of Child Health and Human Development Investigative Interview Protocol (Lamb et al, 2007) and the Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act (POCSO), 2012 Ministry of Women and Child Development, Government of India, 2013.

49 Also see, P.M.Nair, “Rights Based Investigation: The New Mantra”, Tata Institute of Social Sciences, 2017.

themselves. Their tone must be relaxed and easy-going. Sometimes children think that they have done something wrong and are in trouble and therefore are being interviewed by the judge/police personnel. It is important to allay their fears. The following is a brief example of how one can introduce one’s self at the beginning of the interview. “Namaste, my name is XYZ. I am a police/ judge in this court. Part of my work here is to talk to children about events that have happened to them.” Or, – “Hello, my name is …… and I am a police officer here. I talk to a lot of children in … (example of name of place where police station is located) about things that have happened to them. We will talk for a while and then I will take you back to the other room where your mother is waiting for you. Okay?”

If the interview is video-recorded, verbal consent of the child must be taken prior to the interview. A statement such as the following can be made. “I have a video recorder in this room. It will record what we say. It is there so that I can listen to you without having to write everything down. Is that okay?”
The child’s personal space must be respected. By this it is meant that there must be adequate space between the interviewer and the child. More often than not, these children are talking about difficult issues which they may or may not have confided in others, events that are painful, shameful, embarrassing and guilt inducing and thus it can be quite disconcerting to have someone, especially a person in authority staring/looking at them directly at all times. Sitting at an angle of 45 degrees is helpful, as the child can look in front and talk if they don’t wish to look at the interviewer, but the interviewer can see the child at all times.
As these children have been abused in some form or the other (physical, sexual) they often misinterpret touch. It is important therefore, not to touch the child. Even if it is a small child, it is important not to tousle their hair, pinch their cheeks or demonstrate affection using touch.
If the interviewer is unable to hear the child, he/she should not guess what the child might have said. This is important, because if the interviewer has misunderstood the child, in most cases the child is unlikely to correct the interviewer. It is therefore always better to ask the child again as to what he/ she had said. For example, “Could you repeat what you just said?” or “I did not hear what you just said, so could you repeat it again please”
If the child is talking very softly and the interviewer is unable to hear the child clearly, this should be communicated to the child. The interviewer could give the child an explanation such as -”I am unable to hear you, so it would help me if you can look at me and talk a little louder. Thanks” or, – “I have some difficulty hearing, so could you look at me and talk a little louder. Thank you”

Do not volunteer information that the child has not yet revealed in the interview. For example, if the child has not told you that the father lay down on top of the child it is important not to introduce this information before the child has revealed it himself/herself. For example, “Did he have his pants off or on when he laid down on top of you?” If leading questions have to be asked then it is suggested that the following style be adopted – “Did he have his pants on or off?” Based on the child’s answer, the follow up question can be – “Tell me what happened after he took off his pants?”, or “Tell me what happened then?”

Additional Don’ts

If the child is not comfortable for any reason, try to understand the reasons and reduce/avoid them before resuming interview. If the child is not ready or willing to speak, do not force the interview. Do it at a later date when the child is willing. Avoid repeated questioning/interview on the same topic or issue unless it is essential to clarify contradiction or follow-up on important gaps.

Language and Communication

It is important to talk to the child in a language well understood by the child. If the interviewer does not speak the child’s preferred language or dialect a translator must be present.
Do not use baby or childish language while talking to children. Use a normal adult tone and pronunciation. The words that the child uses to describe certain body parts or names of alleged perpetrators or others, need to be used when referring to these body parts or persons.
Actively listen to the child using minimal encouragers, such as “Go on, I am listening”, or “Hmmm”, or “Then what happened?”,or “Tell me more about what happened.”
If the child uses a kinship term like “uncle” or “Grandpa” it is useful to clarify their name. For example, “Can you tell me this uncle’s name?” Or, the interviewer can ask – “Do you have one grandpa or more than one grandpa? Which grandpa was this?” Thereafter during the interview the alleged perpetrator’s name must be used. For example, if the child says “XYZ Mama” or “Dada” then subsequent questions must contain his/her name.
It is also important not to use the pronouns ‘he’ or ‘she’ as they can be quite ambiguous. For example, “What were you doing when he came home?” Instead the question can be framed as “What were you doing when XYZ Mama came home?”
Do not propose feelings by saying things such as – “I know that you probably hate your father.” Feelings that children have for the perpetrators can be

rather ambivalent. Sometimes it can be quite confusing for the child. The perpetrator may otherwise be pretty affectionate and caring and the child may have difficulty reconciling the different experiences shared with the perpetrator, both positive and negative experiences including the sexual abuse itself. The above statement regarding whether the child hates her/his father need not be made at all, as it is irrelevant legally to whether sexual abuse has indeed occurred or not.

Do not make promises such as – “I will lock him up in prison and you will never have to see him again.”This is not ethical, as one cannot predict what is likely to occur during the trial. Making false promises can therefore even result in secondary victimization.
Do not ask questions which convey judgments such as -”Why didn’t you tell your mother about it that very night?” It is essential to be non-judgmental, as in all probability, the child is feeling guilty about the same fact and this can make the child more guarded which may impede further evidence gathering by the interviewer.
Do not use the words such as “abuse”, “rape” or “bad” etc., when asking about the experiences as these are adult interpretations.
Do not display affection and bonhomie such as “I am like your father, you can tell me anything”, or “We are friends, aren’t we?” This might be quite confusing for the child whose trust in adults and perhaps in close friends/ relatives has been destroyed – which may therefore make him/her more wary and guarded.
If the interviewer does not understand a particular word or phrase, she/he can ask the child to elaborate by showing it on an anatomical drawing and explaining the same. For example, if the child says “pee pee” for the male/ female genitalia, then the interviewer must ask – “Can you tell me what a pee pee is?” or “On this diagram can you show me where the pee pee is? As explained earlier, it is also important that the child’s words be used subsequently in the interview, when referring to the genitalia.
If there is inconsistency, then the interviewer must ask the child for clarifications in a non-confrontational and non-accusatory manner. At no point should the questioning style suggest dis-belief in the story of the child. For example conversations questions with statements such as the following should be avoided – “You said that your XYZ uncle, kissed you on your mouth yesterday and then you said that you had stayed at your ABC uncle’s place yesterday. I am confused. Can you tell me again what happened.”

Questioning Children

Children are quite concrete in their thinking, and thus open-ended questions

must be asked. Questions such as “Did he touch you?” are not very good questions as they are unclear and misleading. Some children may answer negatively as in their experience, they were kissed not touched. Children are often literal beings and may be extra careful while answering in an interview of such nature and thus may not equate touch and kiss.

Questions, which are ambiguous must not be asked, such as -”How were your clothes?” Instead, concrete questions such as – “What were you wearing when this happened?” must be asked.
In the hierarchy of questions that can be asked during an interview of a child victim, open-ended questions and prompts are most often preferred. Specific but non-leading questions can be asked for soliciting further details. Closed questions are used to confirm specific details through the use of a multiple- choice question or a yes/no question. Leading questions can be asked after certain facts have already been established/revealed by the child.
Examples for the above mentioned question types are given below.
Open-ended questions are as follows. “Tell me everything you can about it”, or “Tell me what you know about what happened.” Open-ended prompts are used in the following manner: If the child stated that the uncle hit her, an open-ended prompt would be – “You said your uncle hit you. Tell me what happened”, or “You said your uncle hit you. Tell me everything about that.”
Specific, non-leading questions are as follows. It focuses on details the child has already mentioned. Questions of this kind are as follows – “You said you were at home alone. Tell me what happened then?” or “You called this person XYZ. Who is XYZ?”, or “You said you were sleeping. Then what happened?”
An example of a closed question would be as follows “Where did this happen? In your room, the bathroom or another place?”, or “Were you wearing your pyjamas, orwearingsomething else?”
- Leading questions must not be asked or, if at all, should be used sparingly, as they assume facts or suggest an answer, which the child has not yet given. Questions such as – “He touched you, didn’t he?”, should not be asked. If a leading question is required to be asked, the question should be framed as follows, “Did Uncle XYZ touch you?”, then follow it up with an open-ended prompt such as – “Tell me everything about that.”
- Do not ask the child to “pretend or imagine”. For example, “Imagine what happened and tell me.” This is not a good practice, as it removes the child from the direct experience and can lead to incorrect or/and inaccurate answers.
- Most children do not understand the concept of time until they are 8-10

years of age. Even if they do understand the concept of reading time, they may or may not be able to relate it to events that have occurred. Children less than 4 years have difficulty with times of the day. Children less than 7 years also do not understand prepositions such as “before” and “after” clearly.It is essential to keep these facts about the developmental stages of children in mind while questioning children. Words such as ‘yesterday’, ‘day after tomorrow,’ etc., should also not be used. Clock times should not be included in questions. Instead, events should to be tied to meal times and other activities in the child’s day, (for example, to the time that he/she goes to school or comes back from school, attends singing class, etc.), which can be used as reference points. For example, – “You came back from school and then what happened?”, or “You said you ate lunch. Then what happened?”

Young children also often have difficulty with numbers. Children should not be asked, “Tell me how many times it happened?” Instead the question should be framed as “Did it happen once or more than once?”, followed by questions such as “Can you tell me about the first/last time that this happened?”
Multiple questions should not be asked at the same time. For example, “Where were you and what were you doing?” Instead, if the child stated previously that the event occurred after the uncle came home, then the questions must be framed as follows – “Where were you when XYZ uncle came home?” After the child has answered the first question, the next question can be - ”What were you doing when XYZ uncle came home?” If for instance, the child said he/she was doing his/her homework, then the follow up question thereafter can be -”Tell me what happened after XYZ uncle came home and found you doing your homework?”

Making the Child Comfortable

Do not correct the child’s behaviour. For example, if the child rocks in his/ her seat, or shakes his/her legs, as long as the interviewer can hear the child and it is not interfering with the interview procedure, it should be allowed, as these are often nervous or soothing behaviours. The child should, in no circumstance, be told to stop acting in these ways or any other such manner, as the range of such self -soothing behaviours may not always be all known. For example, some children may tap on the desk, hum, make noises with their mouth; rub their hands, sing, etc. An effort should be made to understand such behaviours, (however disturbing they may be to the interviewer), as possibly self-soothing behaviours, which in itself may actually contribute to a conducive and enabling environment for the child in making a clear testimony.
It is also important to convey a non-judgmental attitude. Do not display shock,

disbelief or disgust when the child says something. If a translator is present, try and confine your communication with the translator to understanding the child. Do not engage in conversation beyond this as it could distract and prevent the free flow of thought and recall of painful memories.

Do not promise rewards or gifts by making statements such as – “I will give you a chocolate, if you tell me what happened?”
Do not withhold basic needs as a form of reinforcement, by making statements such as –”I will allow you to go the bathroom/drink water if you tell me what happened?” Children are then not only compelled to concentrate more on holding in their bowel/bladder, rather than answering the interviewer’s questions, which is counterproductive, but also feel disrespected and unimportant.
Uses of reinforcements as stated in the above two examples are viewed as improper interview techniques, as they tend to coerce and compel the child into stating events and making disclosures in an incorrect manner. This will undermine the quality of the interview and the accuracy of the facts collected which can have negative consequences for the case in court.
Acknowledge the child’s feelings. For example, if the child is demonstrating a feeling of being upset, sad, embarrassed or scared, acknowledge these feelings. For example, “I talk to many children about these kinds of things, it’s okay to feel that way, don’t worry. Now, would you like to tell me what happened?”

Additional Points for police officers:

(For details, refer ‘RBI: Rights Based Investigation: A Change mantra in Investigation’, by Dr P.M. Nair, TISS, 2017)Understand the difference between interviewing and interrogation. Interrogation techniques cannot be used in interviewing
Avoid repeated interviews by several investigators and supervisory officers, one after another, each one asking almost the same set of questions
Better to avoid too much crowding while interviewing. Let the team have maximum three persons and the best is to keep it two.
Do associate female persons for interview od children, both male and female.
Know the legal requirements and ensure that. For example, under the ITPA, a rescued woman (means girl child also) shall be interviewed by a female police officer and if a female police official is not available, by a male police officer in presence of a female social worker (meaning a lady NGO).
When translators are being used for interview, train and orient the translators

too on the various aspects of child rights so that there is no violation from their side too.

It is essential that the trauma of the child victim is caught in the case diary. The sequence of events being written in the CD, under S. 172 Cr.P.C., be made elaborate and self-contained so that the Court gets a comprehensive picture of the trials and tribulations that the child victims had undergone.
Avoid touching the child victim, unless he/she needs physical support.
While interviewing, do observethe child carefully and capture all the nuances in the conversation, including the unspoken part, which comes out through the demeanour, body movements and all aspects of non-verbal communication. If required associate experts in neuro-linguistic programming.
Do not pressurise the child to speak. Give her/him time. Let them speak at their convenience.
Avoid group interviewing. Interview is not Focus Group Discussion. It has to be centred on the interviewed as much as the interviewer.
When the child victim starts speaking, do not interrupt or postpone the interview, even if the investigator may be bust elsewhere.
Ice breaking is an art. It has to be practiced. There cannot be a hard and fast rule on the method, as it depends on the facts and circumstances of the case.
Every child is different. Hence be not under the impression that there can be a standardised SOP for interview. Adopt according to the needs and situation.
Associate persons whom the child has trust, before and during interview, if the situation demands so. Forexample, in recent case where the girl child was being abused by the father, the brother of the girl noticed this and he started teasing her. When it came to the notice of the mother, she went into a shock and would only say that the daughter and son shall not speak out anything. Now the mother is in deep trauma. Such a mother cannot be attending the interview of the child, eventhough the mother loves the child and cares her. However, another trusted person should be present when the child is interviewed.

1.3.1. How to Ascertain if a Child Witness Understands the Difference between Truth and Lie

In State v. Sujeet Kumar,⁵⁰ the Delhi High Court was critical of the

50 CRL.A. 1190/2014 decided on 13.10.2015 by the Delhi High Court.

developmentally inappropriate questions posed by a Magistrate to assess the competence of a two-and-a-half year old child victim of a brutal rape before recording her statement under Section 164, Cr. P.C. It found the questions to the child about the school she went to and the class she studied in highly inappropriate as the child lived in a slum and did not attend any school. The Magistrate then asked her if she understood the term “truth” and the difference between truth and lie. The High Court observed: “How could a two and half year old child explain the meaning of word “truth” and state difference between truth and lie. It is very difficult, even for adults, to respond to abstract questions asking them to explain the conceptual difference between truth and lie. What to talk of a two and half year old child.”

The Delhi High Court cited an article “Child Witness Competency: When Should the Issue be Raised” and highlighted the key points as follows–

Asking, “What does it mean to tell the truth?” and “What does it mean to tell a lie?” are more developmentally appropriate for young children than asking, “What is the difference between the truth and a lie?
Very young children often are unable to answer even these easier questions in a narrative form due to their underdeveloped language skills. Situationally relevant multiple-choice questions can be posed to assess the child’s competency.
Examples of such questions are:

If I told your mom that you just yelled at me, would that be the truth or a lie?
If you told your mom that I hit you, would that be the truth or a lie?
If you told your teacher that something bad happened to you, but it really didn’t happen-you were making it up-would you be telling the truth or a lie?

Competent children should be able to consistently provide correct answers to these multiple-choice questions.

This ruling should be borne in mind by police officers who interact with children and record their statement.

Section 1.4 – Behaviour of a Child Victim of a Sexual Offence

Features of Child Sexual Abuse

Extracted from: World Health Organisation, Guidelines for medico-legal care for victims of sexual violence, 2003⁵¹ –

Features that characterize child sexual abuse include:

Physical force/violence is very rarely used; rather the perpetrator tries to manipulate the child’s trust and hide the abuse.
The perpetrator is typically a known and trusted caregiver.
Child sexual abuse often occurs over many weeks or even years.
The sexual abuse of children frequently occurs as repeated episodes that become more invasive with time. Perpetrators usually engage the child in a gradual process of sexualizing the relationship over time (i.e. grooming).
Incest/intra-familial abuse accounts for about one third of all child sexual abuse cases.

Considered diagnostic if perinatal and iatrogenic transmission can be ruled out.
Diagnostic in a child below the age of consent.
No one behaviour can be considered as evidence of sexual abuse; however, a pattern of behaviours is of concern. Children can display a broad range of sexual behaviours even in the absence of any reason to believe they have been sexually abused.

51 Pg. 76 http://www.who.int/violence_injury_prevention/resources/publications/en/ guidelines_chap7.pdf

Grooming of Child – Grooming is when someone builds an emotional connection with a child to gain their trust for the purposes of sexual abuse, sexual exploitation or trafficking.Children and young people can be groomed online or face-to-face, by a stranger or by someone they know – for example a family member, friend or professional.Many children and young people don’t understand that they have been groomed or that what has happened is abuse. The signs of grooming aren’t always obvious and the groomers will often go to great lengths not to be identified. If a child is groomed, the child may exhibit the following behaviours⁵² –

Be very secretive, including about what they are doing online
Have older boyfriends
Go to unusual places to meet friends
Have new things such as clothes, or mobile phones that they can’t or won’t explain
Have access to drugs and alcohol.

Grooming can affect any child, however some children may be more at risk than others such as children, who are disabled or in care, and those who are abused by known family members, such as fathers, uncles, etc. The groomers will exploit any vulnerability to increase the child or young persons dependence on them, and reduce the likelihood of the child speaking out.Police investigating cases of incest/ sexual abuse by known family member, need to understand that it is due to grooming that the child continues to say that she “loves” the father or the “grandfather”, without understanding the child was actually harmed by the abuser.It should also be noted that there is no ideal behaviour of a child victim of a sexual offences. The police should avoid arriving at conclusions about the veracity of the allegation based on the child’s emotion and physical behaviour. For instance, if the child is not distraught or upset, it cannot be interpreted to mean that the child has not been sexually abused.

Section 1. 5 – Children with different gender identities and sexualities

Gender and sexuality are an integral component of a person’s identity including a child’s identity. While childhood by itself is denotes vulnerability, identities of gender and sexuality intensify this depending on the social landscape the child is brought up in. Development of gender and sexuality identities is also a part of the physical, cognitive, social and emotional development of a child.⁵³ It is therefore crucial to understand these aspects and their impact while dealing with children

52 NSPCC, “Grooming: What it is, signs and how to protect children”, https://www.nspcc.org.uk/preventing-abuse/child-abuse-and-neglect/grooming/

53 Angela Oswalt, Early Childhood Gender Identity and Sexuality, Gracepoint, available at http://www.gracepointwellness.org/462-child-development-parenting-early-3-7/article/12771-early- childhood-gender-identity-and-sexuality

Sex and Gender

‘Sex’ and ‘gender’ are the commonly used terms to differentiate between male and female persons. As technical terms, ‘sex’ refers to biological difference while ‘gender’ is social difference commonly referring to ‘masculinity’ and ‘femininity’. Gender issues in children may arise biologically as well as psychologically.

Typically after the birth of a baby, the child is assigned a gender after inspection of the child’s genitals. This is both a social as well as legal process. For a majority of children, the determination of sex and gender gets resolved at birth, i.e., children assigned the male gender identify themselves as boys and later as men, and children assigned the female gender identify themselves as girls and later as women. However, some children, may begin to display gender issues as they develop. These children typically begin to non-conform with the gender they were assigned. For some of these children, it is only a temporary phase. However, a few children will persistently insist on identifying as the opposite of the gender they were assigned in addition to being gender non-conforming.⁵⁴ While this group of children may grow up to become transgendered adults, they may begin the process of transitioning during their childhood itself.⁵⁵ Being transgendered refers to persons who have transitioned to a different gender than the one they were assigned at birth. Transitioning can occur in several ways from just changing names and clothing, to undergoing surgery and hormone therapy.

Some gender issues are biological in nature, i.e., occur as result of chromosomal deformities. This occurs in roughly 1.7% of all children.⁵⁶ These children are referred

54 Gender Non-Conforming & Transgender Children, Healthy Children, available at https:// www.healthychildren.org/English/ages-stages/gradeschool/Pages/Gender-Non-Conforming- Transgender-Children.aspx

55 Ibid.

56 Jenny Kleeman, ‘We don’t know if your baby’s a boy or a girl’: growing up intersex, The Guardian [2 July 2016], available at https://www.theguardian.com/world/2016/jul/02/male-and-female-what- is-it-like-to-be-intersex

to as ‘inter-sexed’ children. Inter-sex persons are completely different from trans- sexual persons although the two groups are mistaken as the same. While intersex is a biological condition, trans-sexual is a psychological one.

Inter-sexed children are generally assigned a gender at birth even though they display both male and female traits. These traits can be visible externally (i.e., children born with both male and female genitalia) or be only internal (i.e., chromosomal anomalies). Several parents pick a gender and opt to corrective surgery and ‘fix’ this issue. Although surgery is a popular method chosen by parents to correct this issue, many times the issue remains unresolved and children experience gender unease and dissatisfaction i.e. distress with the gender assigned to them. This occurs when the gender assigned to them does not conform with their own sense of gender identity. With children whose anomalies are not visible at birth, they become evident during the development of the child. For e.g., a child assigned the female gender, may begin to show external male traits as she grows older such as facial hair, the growth of male genitalia, etc.⁵⁷

Sexual Orientation

Sexual Orientation refers to the gender of the person to whom one is attracted to or wishes to be in a sexual relationship with. Sexual orientation, although commonly categorized into homosexuality (attracted to a person of the same gender) and heterosexuality (attracted to a person of a different gender), can be identified across a spectrum of orientations. Although sexuality as an identity is generally perceived to develop only post puberty, children actually develop these identities from as early as the infancy period.⁵⁸

Impact of gender and sexuality issues on children

Children who display gender and sexuality issues face enormous discrimination, social stigma and humiliation in society. This directly impacts the exercise of their fundamental rights. At present, India has not legislated any special laws protecting persons who have gender and sexuality issues. Homosexuality is prohibited and is an offence under the criminal law of India.⁵⁹

The Supreme Court has highlighted the rights of inter-sexed and trans-sexual persons in 2012 in the case of National Legal Services Authority v. Union of

57 Intersex states, Encyclopedia of Children’s health, available at http://www.healthofchildren.com/ I-K/Intersex-States.html

58 Infancy Sexuality and Body Awareness Development, Gracepoint, available at https:// www.gracepointwellness.org/461-child-development-parenting-infants-0-2/article/10119-infancy- sexuality-and-body-awareness-development

59 IPC, Section 377.

India.⁶⁰ In this case, the transgendered community petitioned the Supreme Court praying to recognize their right to gender identity stating that non-recognition of their gender identity is violative of the right to life and right to equality enshrined in the Constitution. The Supreme Court in its landmark decision upheld the right to have a third gender and a self-identified gender. The Court further clarified that these persons would be guaranteed all the fundamental rights available in the Constitution. The Court also asked the Centre and State governments to take steps to address the problems faced by this community.

Based on the above and the principles under Section 3, JJ Act, 2015, the police should treat inter-sex and transgender children with dignity and not discriminate against them based on their gender identity. Stigmatizing language and terms should be avoided. For instance, such children should not be referred to as “chakka”, or any other demeaning or derogatory terms.

Role of Police in ensuring the care and protection of inter-sex children, transgender children or children with different sexualities

While there is no law that guides the police in their interaction with transgendered, intersexed children, and children with different sexualities, the guidelines issued by the Ministry of Health and Family Welfare (MOHFW)is instructive.⁶¹ Although the guidelines are issued primarily for medico-legal care of survivors and victims of sexual assault, they provide useful guidance for all persons dealing with such children entering the Juvenile Justice system or the criminal justice system.The guidelines which are relevant even for law enforcement officials to observe have been extracted below:Relevant Guidelines for transgender and intersex children from the MOHFW Guidelines :⁶²

Gender identity is not constituted by anatomy, especially appearance of genitals. Primacy should be given in the record to the survivor’s stated gender identity and appropriate names and pronouns used.
Intake forms and other documents that ask about gender or sex should have options as male/female/others.
Information on the intersex variations or transgender status of the survivor must be treated as confidential and not to be revealed without the survivor’s consent.

60 National Legal Services Authority v. Union of India, (2014) 5 SCC 438

61 Guidelines & Protocols, Medico-legal care for survivors/victims of sexual violence, Ministry of Health and Family Welfare [2014] available at https://mohfw.gov.in/sites/default/files/ 953522324.pdf

62 Id. at p.12

The inadvertent discovery during examination or history taking that a person is transgender or intersex must not be treated with ridicule, hostility, surprise, shock, or dismay. Such reactions convey that the person is being judged and is likely to make them uncomfortable in the health care setting.
Information about referral agencies that provide services to transgender or intersex survivors of sexual violence must be provided where available.

Guidelines for dealing with children with alternate sexualities:⁶³

There should be no judgment on the person’s sexual orientation in general or as a cause of the assault.
Confidentiality of their sexual orientation should be maintained. One should not discuss or mention it to the other staff members unless needed for treatment reasons.
The professional should not express shock, wonder, or any other negative emotions when a person reveals their sexual orientation. The speech and behaviour of the professional should remain inclusive.
The professional should not give any advice or ‘offer solutions’ to ‘cure’ them of their sexual orientation.
Lesbian, gay, bisexual and transgender persons are likely to be targets of hate crimes and may want to talk about the role their sexual orientation played in making them vulnerable to sexual violence. Their experience should be given a sincere hearing and validated. The survivors should be assured that it was not their fault that they were sexually assaulted.

Section 1.6 – General Norms of a Child Friendly Trial

Norms of a Child-friendly Trial⁶⁴

A parent or guardian should accompany the child at all times. In case they are accused of the offence against the child, another suitable person chosen by the child, or a representative of a fit institution as defined in the JJ Act, 2015, or a Support Person appointed by a CWC or a court should accompany the child.
Where the parents or guardians are involved in the commission of an offence or the child is living at a place where there is a risk of further trauma, the child should be produced before the CWC and the CWC may direct the child to be taken out of their custody or care, or out of such situation. In the context of a sexual offence against a

63 Id. at p.13

64 JJ Rules, 2016, Rule 54(18),

child, the decision to take the child out of the custody of a parent, guardian, or childcare institution can be taken only by the Child Welfare Committee.⁶⁵ Courts before whom such children are produced should direct the police to present the child before the jurisdictional CWC.

Age determination must be conducted as per the procedures laid out in Section 94, JJ Act, 2015.
The language used in the court must be familiar to the child and where needed translators, interpreters, and special educators must be made available.
The court must ensure beforehand that the child is capable of giving a voluntary statement.
No statement of the child should be disregarded as evidence in the trial solely on the basis of the age of the child.
Images or statements admissible in the interview of the child should not be detrimental to the mental or physical well-being of the child.
Length and questions admissible at the interview should not be taxing and must be suitable to the attention span of the child.
In case of young children, or otherwise incapacitated child, alternative methods of interaction and evidence collection that is less intimidating to be adopted.
The Court should ensure that at no stage during trial, the child comes face to face with the accused.
Special permission from school and arrangement for remedial classes for days lost to be ensured by the school authorities.
Identity of the child should be protected from the media.

Section 1.7 – Convergence and Networking by Police with Multiple Stakeholders

During the entire process, from the filing of the complaint, during investigation, prosecution and trial and the care, protection, rehabilitation and reintegration of the child victim, various functionaries are involved at different stages. Some of these stakeholders, such as, the police, the nodal government departments and the non-governmental stakeholders – have corresponding roles and responsibilities, which are all geared towards providing a victim-friendly and child-friendly treatment to the child victim at all stages of the justice delivery and beyond.

While it is important that each of the stakeholders perform their role well, effective delivery of child protection services requires coordination and convergence amongst them.

⁶⁵ POCSO Rules, Rule 4(3) (4)

1.7.1. Role of the Police/SJPU vis-à-vis other authorities

Sr.

No.

Police/SJPU

Convergence and Networking Relation

Role of the Police/SJPU vis-à-vis Child Welfare Committee (CWC)

Any child, who on reasonable grounds is thought to be a child in need of care and protection by the State may be produced before the CWC by any of the following persons – any police officer or Special Juvenile Police Unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit⁶⁶ or Inspector appointed under any labour law for the time being in force
For a child that is produced directly before CWC by anyone, CWC and police/ SJPU to coordinate in filing of FIR or a preliminary complaint, as relevant
Rescue/ recovery of child and/ or recovery of child’s property (from brothel, home, or place of work)
Tracing of family in cases of missing/rescued/ found children
Verification of documents for identity, age determination, etc.
Escorting child (to hospital or for tracing of family or for intra-state or interstate restoration with family, etc.)
Co-ordination in court during trial
Information regarding a case under the POCSO Act should be reported by the police with the CWC within 24 hours.

Role of the Police/SJPU vis-a-vis NGOs

Receiving complaints/ reports through Childline or NGOs.
Filing FIR or a complaint
Assistance with tracing of family (for children rescued from exploitative situations and living without families), rescue operations, recovery of child’s property, etc.
Home verification report (under ITPA, 1956)
Placement of the child for short term or long term care based on an order from the CWC.
Counselling child victim for recording statements under S. 161 Cr. PC.
Psycho-social counselling and services, education, age appropriate vocational training, legal counselling and legal aid.

66 JJ Act, 2015, Section 106.

Sr. No.	Police/SJPU	Convergence and Networking Relation
		Assist police with inter-state or intra state transfer of child, and repatriation if child is foreign national. Procuring identification documents for the child. After care and monitoring of child restored with family.
3	Role of Police/SJPU vis-à-vis Department of Health (hospital)	Reporting of sexual offences. Medical examination. Age verification. Hospitalization and special or emergency medical treatment (where required). Providing psychologists/ counsellors for professional counselling services (when required by the police).
4	Police/SJPU – Department of Labour Coordination	Rescuing of child in coordination with Labour Inspector (appointed under any labour law); authorities under the Child and Adolescent Labour (Regulation and Prohibition) Act, 1986; and authorities under the Bonded Labour Act, 1976; and production before the CWC. Coordination with District Child Labour Task Force. Rescuing of child labourers in coordination with Inspector under the Shops and Establishments Acts, and production before the CWC, if necessary.
5	Role of the Police/SJPU vis-a-vis State/District Legal Services Authority (DLSA) [Details of SLSAs is available at https:// nalsa.gov.in/state-lsas- websites]	Aid and assistance to the child victim for legal aid, where offences have been committed against the child. Provision of legal services. Assisting the child to receive compensation under the State Victim Compensation Scheme (Section 357A, Cr.P.C.) or any other scheme or to make an application to the Special Court for compensation (Section 33(8), POCSO Act and Rule 7, POCSO Rules),where ever applicable (even where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or dependents may make an application to the State or the District Legal Services Authority for award of compensation.
6	Role of Police/SJPU vis-à-vis Special Public Prosecutors and Prosecutors	The charge-sheet should be scrutinized collectively to ensure all relevant provisions are included and aggravating factors are taken into account.

Sr. No.	Police/SJPU	Convergence and Networking Relation
		The international mobility of offenders with respect to trafficking and sexual offences make it more necessary than ever that police and prosecutorial agencies collaborate and provide legal assistance to the country that has assumed jurisdiction over the offence committed by foreigner(s). In cases of child trafficking, if the traffickers are foreign nationals, police should coordinate with the public prosecutor in matters related to extradition of the offender(s). Referrals by the police in collaboration with prosecutors, to the appropriate government departments and NGOs, ensure that victims are offered comprehensive assistance through referrals to specialized services. Assist the NGO supporting the child victim to coordinate with the prosecutor for preparing the child towards testimony in court.
7.	Role of the Police/SJPU vis-à-vis DCPU.	Coordinate for escort, restoration and repatriation of children living in Child Care Institutions. Cooperate in cases of deaths, suicides, children running away from institutions.· Cooperate in cases of offences within child care institutions. Close co-ordination between SJPU and DCPU for welfare of children within their jurisdiction.⁶⁷ Assist victims access compensation and rehabilitative services and schemes.
8.	Role of the Police/SJPU vis-à-vis Media	Sensitizing the media to inform the general public about issues related to crimes against children in their area of jurisdiction Dissemination and telecasting of photographs of missing/ lost/found children for tracing their families Sharing good practices, success stories, and the committed work done by police towards successful investigation and prosecution of crimes against children. Ensuring that identity of child victims is protected from the media.

67 JJ Model Rules, 2016, Rule 86(12).

Areas of intervention of the concerned stakeholders vis-à-vis child victims of offences

Stages of Intervention

Relevant Stakeholders

Identifying victims

Rescue of victims Post-rescue interview

Referral Services

Investigation of cases Prosecution of cases

Rehabilitation and Social Re-integration

Repatriation

Police,Department of Labour, Department of Immigration, Border Security Forces, NGOs/ Childline, complaints by victim/ parents/ public spirited citizen / doctor, nurse, DCPU.

Police,Department of Labour, Department of Immigration, Childline, NGOs (aiding and assisting the rescue team). Police,CWC,Department of Labour, Department of

Immigration, NGOs/SJPU social worker/DCPU Social

Worker/Case Worker, counsellor.

Police/SJPU, Prosecutor’s office, CWC, Department of Labour, Department of Immigration, NGOs/social worker

/ counsellor, Department of Health, District Legal Services Authority, Support Person, DCPU.

Police/SJPU, Police with Department of Labour (for forced/ bonded/ child labour)

Directorate of Prosecution, public prosecutors along with the Investigating officer from Police, Department of Labour, victim’s lawyer.

Police, prosecutors, courts, JJB, CWC, DCPU, NGOs, Support Person, DLSA/SLSA, Department of Labour, Department of Health, Department of Education, Skill India Initiative, Ministry of External Affairs (for repatriation of foreign child victims).

Ministry of Home Affairs, Ministry of External Affairs, police, prosecutors, courts, authorities under the JJ Act, 2015, NGOs.

1.7.3 Specific Duties of Governments and Actors within Criminal Justice System

Duties of the State Government and other governmental agencies with respect to trying offences against

children:

Duties of the State Government
Infrastructural	Constitution of SJPUs and designating CWPOs in every police station.⁶⁸ Designation of Special Courts in every district under the POCSO Act.⁶⁹

68 JJ Act, 2015, Section 106.

69 POCSO Act, Section 28(1).

Duties of the State Government
Legal Aid Special Arrangements	Appointment of Special Public Prosecutors to exclusively try sexual offences against children. Court complexes and courtrooms should be accessible to persons with disabilities.⁷⁰ Every Court complex must have a special children's room exclusively for children waiting and children who are giving their statement or interview. Provision for separate entrances for children (wherever possible) Video-conferencing facilities for interacting with children (where possible) Where video-conferencing is not possible in case of victims coming for the trial from other districts, all necessary accommodation, travel expenses for the child and a guardian accompanying the child must be provided as per actuals by the State Government or Union Territory Administration.⁷¹ Provision for entertainment for children such as books, games, etc. (where possible) in the special children's room in the Court Complex.⁷² Separate rooms for vulnerable witnesses may be designated in every Court Complex to record the evidence of child witnesses.⁷³ The State/District Legal Services Authority may provide a support person or paralegal volunteer for pre-trial counselling and to accompany the child for recording of the statement. The assigned person can also aid in familiarizing the child with the Court and Court environment in advance. Where the child is found to be disturbed by the experience of coming to the Court, the support person or paralegal volunteer can move an application for recording of testimony via video- conferencing.⁷⁴ Provision of translators and special educators when necessary by the DCPU. Database of such qualified and experienced service providers should be prepared and maintained by the DCPU.
Duties of the Magistrate recording the statement of the child victim under section 164
The Magistrate can record the statement of the child under section 164 of the Cr.

⁷⁰ Rights of Persons with Disabilities Act, 2016, Section 12.

⁷¹ JJ Rules, 2016, Rule 54(16)

⁷² Rule 54(12)

⁷³ Rule 54(17)

⁷⁴ Rule 54(14)

P.C in the children's room, or if possible at the residence of the child. The residence can include the home or an institution where the child resides.⁷⁵ It must be recorded verbatim, i.e., in the exact words used by the child.⁷⁶ The child may be allowed to be accompanied by his/her parent, guardian or social worker.⁷⁷ Recording of the child's statement must be done by following a child friendly procedure.⁷⁸
Duties of the Judge
Trial	Provision for separate entrances for children (wherever possible)
	Video-conferencing facilities for interacting with children (where possible)
	Provision for entertainment for children such as books, games, etc. (where possible)⁷⁹
Testimony of the Child	If the child victim or witness does not belong to the district or State or country, the statement or interview or deposition of the child may also be recorded through video conferencing.⁸⁰
	Where the child is very disturbed by the court, upon an application, the judge may pass orders for conduction of video conferencing.⁸¹
Compensation	The trial judge should proactively consider whether compensation under Section 357-A, Cr.P.C. or Section 33(8), POCSO Act read with Rule 7, POCSO Rules should be awarded.

SECTION II –THE SPECIFICS:DIFFERENT CONTEXTS

CHAPTER 1 – Sexual Offences against Children

The Context: According to a Study on Child Abuse: India, in 2007 by the Ministry of Women and Child Development, Government of India (MWCD Study), 53.2% children interviewed for the study from 13 States across India reported having faced one or more forms of sexual abuse.⁸² Of these, 52.94% were boys and 47.06% were girls.⁸³

75 JJ Model Rules, 2016, Rule 54(13)(i). 76 JJ Model Rules, 2016, Rule 54(13)(ii). 77 JJ Model Rules, 2016, Rule 54(13)(iii). 78 JJ Model Rules, 2016, Rule 54(12).

79 JJ Model Rules, 2016, Rule 54(12).

80 JJ Model Rules, 2016, Rule 54(15).

81 JJ Model Rules, 2016, Rule 54(14) .

82 Ministry of Women and Child Development, Study on Child Abuse: India 2007, p.74 http://www.childlineindia.org.in/pdf/MWCD-Child-Abuse-Report.pdf

83 Ibid.

Sexual offences against children, however, remain largely underreported and hidden. Data based on the National Crime Records Bureau’s Crime in India, 2016 reveals:⁸⁴

Total number of cases registered under POCSO Act	36022
Total number of cases under Section 376, IPC and Section 4 & 6, POCSO Act	19765
Total number of cases of sexual assault under Section 8 & 10, POCSO Act and Section 354, IPC	12,226
Total number of cases of sexual harassment	934
Total number of cases in which charge-sheet was submitted	30,891
Cases Pending Investigation	15,283 (31.8%)

Reporting of cases under the POCSO Act has significantly increased from the previous years. It was 14,913 cases in 2015 and 8904 cases in 2014. The increase could be attributed to greater awareness among the public as well as the police about the POCSO Act.

Studies have shown that contrary to the popular belief that the threat of sexual abuse is posed mostly by strangers, most perpetrators of sexual offences against children are known to the children.⁸⁵ This is also borne out by the data collected by the National Crime Records Bureau, which revealed that in 94.6% cases of rape and rape read with penetrative and aggravated penetrative sexual assault against children in 2016, the offender wasknown to the victim.⁸⁶ Neighbours, followed by persons who promised to marry the victim were two distinct categories of known persons, apart from relatives, and close family members signifying

84 Table 4A.3, Police Disposal of Crime Against Children Cases (Crime Head-wise) – 2016, Crime

in India, 2016; Table 6.2, Cases Reported (I), No. of Victims (V) and Rate(R) of Crimes Committed Against Children During 2015, National Crime Records Bureau, Crime in India 2015; Table 6.2, Incidence (I), No. of Victims (V) and Rate(R) of Crimes Committed Against Children During 2014, National Crime Records Bureau, Crime in India 2014.

85 Centre for Child and the Law, National Law School of India University, Bangalore (CCL-NLSIU), Report of Study on the working of Special Courts under the POCSO Act, 2012 in Delhi, 29 January 2016, pp. 62-64, https://www.nls.ac.in/ccl/jjdocuments/specialcourtPOSCOAct2012.pdf – Of the 667 cases decided by Special Courts in Delhi, 80% of the accused were known to the victim, 17% were strangers, and the profile of the remaining 3% was not specified. CCL-NLSIU, “Study on the Working of Special Courts under the POCSO Act, 2012 in Assam”, 13 February 2017, pp. 56-57, https://www.nls.ac.in/ccl/jjdocuments/studyspecialcourtassamPOSCOAct2012.pdf – Of the 172 cases decided by Special Courts in Assam, 78% of the accused were known to the victim, 10% were strangers, and the profile was unspecified in 12% cases.

86 Table 3A.4, Offenders Relation to Victims of Rape – 2016., National Crime Records Bureau, Crime in India 2016.

children’s vulnerability within the community and at home.⁸⁷ 12.09% of offenders known to the victim were close family members and relatives, including grandfathers, fathers, brothers, live-in-partners etc., thus indicating that sexual abuse of children takes place within the family setting as well.

The police should bear in mind that children with disabilities are more susceptible to sexual abuse. A 2012 review on the prevalence and risk of violence against children with disabilities published in Lancet, a renowned medical journal, and endorsed by the World Health Organisation revealed that children with disabilities are “2.9 times more likely to be victims of sexual violence”. Further, children with mental or intellectual disabilities are more vulnerable as they face “4.6 times the risk of sexual violence than their non-disabled peers.”⁸⁸

1.1. Overview of Legal Framework

1.1.1. Applicable Laws

Sexual offences against children are recognized under the following statutes:

Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Rules
Indian Penal Code, 1860 (IPC)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act)
Rights of Persons with Disabilities Act, 2016 (RPD Act)
Information Technology Act, 2000
Immoral Traffic (Prevention) Act, 1986 [Please refer to Chapter II]
Indecent Representation of Women (Prohibition) Act, 1986
Goa Children’s Act, 2003

Additionally, provisions of the Code of Criminal Procedure, 1973 (Cr.P.C) and Indian Evidence Act, 1872 (IEA) are relevant to the procedures and evidentiary rules to be followed by Special Courts while trying sexual offences against children.

The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) will apply when the accused is a person below the age of 18 years, and/or when the child victim is also found to be in need of the State’s care and protection. A child who has been, is being, or is likely to be abused, tortured or exploited for

87 Table 3A.4, Offenders Relation to Victims of Rape – 2016, National Crime Records Bureau, Crime in India 2016.

88 Jones, Bellis, etal., “Prevalence and risk of violence against children with disabilities: a systematic review and meta-analysis of observational studies”, The Lancet, Volume 380, No. 9845, p 899- 907, 12 July 2012, referred to in http://www.who.int/disabilities/publications/ violence_children_lancet.pdf?ua=1

sexual abuse or illegal acts comes under the ambit of a child in need of care and protection under the JJ Act, 2015.⁸⁹ Further, a child who has been or is likely to be subjected to a sexual offence under the POCSO Act by a person living in the same or shared household with the child, of if the child is living in a child care institution and is without parental support, or if the child does not have a home or parental support, such a child has to mandatorily be produced before the Child Welfare Committee by the police or SJPU.⁹⁰

The provisions of the Prohibition of Child Marriage Act, 2006 will have to be applied if the child victim under the POCSO Act is married. If the child victim is pregnant and wishes to terminate the pregnancy, the procedures under the Medical Termination of Pregnancy Act, 1971 will have to be followed to facilitate such termination.

1.1.2. Offences under the POCSO Act

The POCSO Act, a special legislation enacted to protect children from sexual assault, sexual harassment and pornography, recognizes penetrative, touch and non-touch based sexual offences. Provisions of the POCSO Act are gender-neutral vis-à-vis both the perpetrator and the victim.

Penetrative Sexual Offences under the POCSO Act

Penetrative Sexual Assault (Sections 3 & 4)
Aggravated Penetrative Sexual Assault (Sections 5 & 6)
Using a child for pornography and committing penetrative sexual assault (Section 13 and 14(2))
Using a child for pornography and committing aggravated penetrative sexual assault (Section 13 and 14(3))

Touch-based Sexual Offences under the POCSO Act

Sexual Assault (Section 7 & 8)
Aggravated Sexual Assault (Section 9 & 10)
Using a child for pornographic purposes (Sections 13 and 14(1))
Using a child for pornography and committing sexual assault (Section 13 and 14(4))
Using a child for pornography and committing aggravated sexual assault (Section 13 and 14(5))

89 JJ Act, 2015, Section 2(14)(viii).

90 POCSO Rules, Rule 4(3).

Non-touch based Sexual Offences under the POCSO Act

Sexual harassment (Sections 11 & 12)
Storage of pornographic material involving a child for commercial purposes (Section 15)

Other Offences under the POCSO Act

Failure to report the commission of a sexual offence (Section 21(1))
Failure to record the commission of a sexual offence (Section 21(1))
Failure of a person-in-charge of any company or an institution who fail to report the commission of an offence by a subordinate under his control (Section 21(2))
Punishment for false complaint or false information (Section 22)
Disclosure of identity of a child without permission of the Special Court (Section 23(2)(4)
Making of report or comments on any child from any form of media without complete and authentic information which may have the effect of lowering reputation or infringing the privacy of the child (Section 23(1) (4))
Abetment of offence (Sections 16 and 17)
Attempt to commit an offence (Section 18)

Expanded Notion of “Penetration”

The POCSO Act has expanded the concept of penetration to include penetration to any extent, of not just the vagina, but also the penetration of the anus, urethra, and mouth by the penis of a person.⁹¹ Insertion of objects or body parts, other than the penis, into the vagina, urethra, or anus of the child or making the child do so with the perpetrator or any other person also constitutes

penetrative sexual assault under Section 3(b). Manipulation of the child’s body parts to cause penetration into the vagina, urethra, anus or any other body part of the child is also an offence.⁹² Penetrative sexual assault also includes within its ambit the application of mouth to the penis, vagina, and urethra of the child.⁹³ Making the child penetrate any person or the perpetrator in any of the above- mentioned ways is also an offence.

91 POCSO Act, 2012, Section 3(a).

92 POCSO Act, 2012, Section 3(c).

93 POCSO Act, 2012, Section 3(d).

Aggravating Factors

The POCSO Act recognizes aggravating factors that warrant the imposition of a higher penalty under Section 5. They are as follows:

If the child is below 12 years of age;
If the child’s mental or physical disability is taken advantage of to commit penetrative sexual assault;
If the penetrative sexual assault is committed more than once or repeatedly;
If the child becomes pregnant because of the assault or physically incapacitated or mentally ill or becomes impairedsuch that the child is unable to perform regular tasks, temporarily or permanently, or the child is inflicted with HIV or any other life threatening disease or infection which can have a temporary or permanent effect on the child’s performance of regular tasks;
If the penetrative sexual assault is committed by a person related to the child by blood, adoption, marriage, guardianship or foster care or if the person is in a domestic relationship with the child’s parent or is living in the same shared household;
If the penetrative sexual assault is by a person on the management or staff of a jail, remand home, protection home, child care institution (CCI), place of custody or care and protection, hospital, educational or religious institution, or an institution providing services to the child, on a child in that institution;
If the penetrative sexual assault is by a person in a position of trust or authority vis-à-vis the child. For instance, a tuition teacher who commits penetrative sexual assault can be charged with having committed aggravated sexual assault because of the position of authority he/she exercises over the child;
Gang penetrative sexual assault on a child;
If the perpetrator is a police officer, public servant, or member of the armed forces or security forces;
If the penetrative sexual assault is committed on a pregnant child knowing that she is pregnant;
If the penetrative sexual assault is carried out using deadly weapons, fire, heated substance or corrosive substance or grievous hurt or bodily harm and injury or injury to the sexual organs is caused;

⁹⁴ POCSO Act, 2012, Section 21.

If the penetrative sexual assault is accompanied by an attempt to murder;
If the penetrative sexual assault is committed during communal or sectarian violence;
If the perpetrator commits penetrative sexual assault and makes the child strip or parade in naked;
If the penetrative sexual assault is committed by a repeat sex offender.

Sexual Offences within the Family Setting

The POCSO Act, 2012 recognizes that sexual offences can be perpetrated by relatives and family members too and considers it to be an aggravated ground for penetrative sexual assault as well as sexual assault. Penetrative sexual assault or sexual assault by a person related to the child by marriage is an aggravating factor. Rape by a relative or a person in a position of trust or authority constitutes aggravated rape under the IPC.Besides, in Independent Thought v. Union of India⁹⁵, to ensure harmony between the POCSO Act and the IPC and to social justice to the married girl child, the Supreme Court read down Exception 2 under Section 375, IPC as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is also important to note that a child may experience confusion and guilt along with trauma when the perpetrator is a family member. Allegations of sexual abuse should not be dismissed as frivolous or false merely because the child says she loves or is fond of the alleged perpetrator. Care should be taken during questioning a child to also assess whether the child has been groomed by the perpetrator.

Sexual Intent Necessary in Touch and Non-Touch Based Sexual Offences

The presence of sexual intent is a necessary ingredient of the offences of sexual assault (Section 7), aggravated sexual assault (Section 9) and sexual harassment (Section 11). Sexual assault includes touching of the vagina, penis, anus or breast of the child or doing any other act with sexual content which involves non- penetrative physical contact. For instance, kissing a child or touching a child’s genitals during bathing or medical examination with a sexual intent would constitute sexual assault. Making the child touch any of the above-mentioned body parts of any person or the perpetrator is also a sexual assault. The grounds for aggravated sexual assault are the same as those for aggravated sexual assault, except the ground related to pregnancy, as that is not applicable in case of sexual assault, a non-penetrative offence.

95 Writ Petition (Civil) No. 382 of 2013 decided on 11.10.17.

Sexual harassment entails utterance of any word or making of any sound or gestures or exhibition of any body part or object with a sexual intent and intention that this is seen or heard by the child.⁹⁶ Showing the child media or objects for pornographic purposes, stalking a child physically, electronically or digitally, or threatening to use in any form of media body parts of the child or the child’s involvement in a sexual act, real or fabricated, constitute sexual harassment.⁹⁷ Enticement of a child for pornographic purposes also falls within the ambit of sexual harassment.⁹⁸

Using a child for pornography

Using a child through any media for preparing, producing, offering, transmitting, publishing, facilitating and distributing pornographic material for sexual gratification is a punishable offence. This includes representation of child’s sexual organs, using children engaged in real or simulated sexual acts, with or without penetration, and indecent or obscene representation of children.⁹⁹ It is immaterial whether the media is for personal use or distribution.¹⁰⁰ The POCSO Act also criminalizes the use of a child for pornographic purposes and commission of penetrative/aggravated penetrative sexual assault and sexual/aggravated sexual assault by directly participating in pornographic acts. Storage for commercial purposes of pornographic materials involving a child is a punishable offence.¹⁰¹

Presumptions under the POCSO Act

The POCSO Act provides for two presumptions – presumption as to certain offences (Section 29) and presumption of culpable mental state (Section 30). A person prosecuted for committing, abetting or attempting to commit penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, or aggravated sexual assault will be presumed to have committed the offence unless the contrary is proved. If an offence requires presence of a culpable mental state, the Special Court should presume its existence and the burden is on the defence to establish that the accused did not have the mental state. The phrase “culpable mental state” includes “intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.”¹⁰² The offences of sexual assault, aggravated sexual assault, and sexual harassment require the presence of sexual intent. The presumption of culpable mental state can be applied to these offences.

96 POCSO Act, Section 11(i)(ii).

97 POCSO Act, Section 11(iii)(iv)(v).

98 POCSO Act, Section 11(vi).

99 POCSO Act, Section 13.

100 POCSO Act, Section 13.

101 POCSO Act, Section 15.

102 POCSO Act, Section 30 Explanation.

Delhi Witness Protection Scheme, 2015¹⁰³

The Delhi government has notified a Witness Protection Scheme, which empowers the Delhi State Legal Services Authority (DSLSA) to pass directions for protection of witnesses, protection of identity, change of identity, or relocation of a witness. An application for protection can be moved by the witness, a family member, a lawyer, or the concerned IO/SHO and preferably forwarded through the Prosecutor.¹⁰⁴ The Scheme provides a wide range of protections such as ensuring that the witness is not exposed to the accused during investigation or trial, changing the telephone number of the witness, installation of security devices in the home of the witness, concealment of identity of the witness, patrolling, escort to and from the court, in-camera trials, allowing a support person to be present during deposition and statements, use of specially designed vulnerable witness courtrooms, expeditious recording of depositions, and financial grants for relocation, sustenance, etc.¹⁰⁵

Karnataka State Child Protection Policy, 2016 (KSCPP)

The KSCPP applies to all educational institutions (EI) that have been defined to mean and include “an institution by whatever name called, including pre-primary, primary, middle, secondary, higher secondary schools, apprenticeship training centres, corporate skill training centres, and includes all premises attached thereto which is carrying on either, exclusively or among other activities the activity of imparting education for children between the ages of 2.5 to 18 years.”¹⁰⁶ It also applies to tutorials, government schools, private schools, partly or wholly aided schools, aided and unaided minority schools. Every EI is required to have a written Child Protection Policy that should recognize protection of children and their commitment to provide a protective environment.¹⁰⁷ Among several obligations, the KSCPP requires EIs to constitute a Child Protection Committee to focus on complaints and violations.¹⁰⁸ The internal response reporting and redressal process is detailed in the KSCPP that includes informing appropriate authorities, ensuring the safety of the child victim, undertaking immediate risk assessment of the child, ensuring medical intervention, informing parents/guardians, preserving evidence, reporting to the police and cooperating with investigation, convening internal meeting, ensuring confidentiality, completing inquiry and taking action and following up on it.¹⁰⁹

103 Available at http://dslsa.org/wp-content/uploads/2016/02/273286063-Delhi-Witness-Protection- Scheme-2015.pdf

104 Delhi Witness Protection Scheme, 2015, Clause 2(n).

105 Id at Clause 7.

106 Operational Guidelines and Procedures for Educational Institutions under Karnataka State Child Protection Policy, 2016, Para 2.1, p.21.

107 Id at Para 3.1, p.23.

108 Id at Para 4.2.1, p.31.

109 Id at Para 4.3, pp.35-39.

1.1.1. Sexual Offences under the Indian Penal Code (IPC)

Pursuant to the Criminal Law (Amendment) Act, 2013 some sexual offences in the IPC were redefined, while several others were introduced. It is important to note that unlike the POCSO Act, most sexual offences under the IPC are not gender neutral. Rape, for instance, can be perpetrated only by a man against a woman.

Pursuant to the Supreme Court’s judgment in Independent Thought v. Union of India, sexual intercourse or sexual acts of a man with his wife who is not below the age of 18 years, will not constitute rape.¹¹⁰ In other words, sexual intercourse of a husband with his wife below the age of 18 years will constitute statutory rape under the IPC.

Note: No sanction for prosecution is required to prosecute a public servant charged with sexual offences under the IPC.

Sexual offences relevant to children under the IPC are¹¹¹:

Outraging the modesty of a woman, which entails the assault or use of criminal force with the intention to outrage or knowing it to be likely that her modesty will be outraged. (Section 354)
Sexual harassment, which includes unwelcome physical contact and advances and explicit sexual overtures, demand or request for sexual favours, showing pornography against will of a woman, or making sexually coloured remarks by a man. (Section 354-A)
Using criminal force with intent to disrobe a woman or compel her to be naked and the abetment of such an act. (Section 354-B)
Voyeurism which criminalizes the following acts by a man – watching, capturing, or disseminating the image of a woman engaging in a private act where her genitals, posterior or breasts are exposed or covered only in underwear or where the victim is using a lavatory or doing a sexual act that is not ordinarily done in public, and where she would usually expect not being observed. (Section 354-C)
Stalking which entails following, contacting, or attempting to contact a woman by a man to foster personal interaction repeatedly despite a clear indication of disinterest by the woman or monitoring the use of internet, email or any other form of electronic communication. (Section 354-D)

110 IPC, Section 375, Exception 2.

111 Source: Raha, Giliyal, Sajjanashetty & Ramakrishnan,

Frequently Asked Questions on the Protection of Children from Sexual Offences Act, 2012 and The Criminal Law (Amendment) Act, 2013, Centre for Child and the Law, National Law School of India University, Bangalore, (revised 2nd ed. 2016) pp. 33-34.

Kidnapping, abducting or inducing woman to compel her marriage against her well, or so that she may be forced or seduced to illicit intercourse, or knowing it is likely that she will be forced or seduced to illicit intercourse. (Section 366)
Procuration of a minor girl which entails inducing a girl below 18 years to go from any place or do any act with the intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. (Section 366-A)
Importation of a girl below 21 years from a foreign country or from Jammu & Kashmir with the intent that she may be or knowing it to be likely that she will be forced or seduced to illicit intercourse with another person. (Section 366-B)
Trafficking which entails recruitment, transportation, harbouring, transferring, or receiving a person for the purpose of exploitation by using threats, force or any form of coercion, abduction, practicing fraud or deception, abuse of power, or inducement including the giving or receiving of payments or benefits to achieve consent of the person having control over the person trafficked. (Section 370) This provision is gender neutral vis-à-vis the offender and the victim. For details, please refer to Chapter 2.
Rape by a man of woman below 18 years, with or without her consent. (Section 375) The Criminal Law (Amendment) Act, 2013 has expanded the concept of penetration and rape now includes penetration of the penis, to any extent, into the vagina, mouth, urethra or anus of woman; inserting, to any extent, any object or body party other than the penis, into the vagina, urethra or anus of a woman; manipulating any body part of woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of a woman; application of the mouth to the vagina, anus or urethra of the woman. Making the woman do any of the above acts with the man or any other person will fall under the ambit of rape if any of the seven descriptions under Section 375, IPC are met. In the context of the girl child, the sixth description which states “With or without her consent, when she is under eighteen years of age” will apply.
Causing death or resulting in persistent vegetative state of a woman during rape or aggravated rape. (Section 376-A)
Sexual intercourse by husband upon his wife during separation without her consent. (Section 376-B)
Sexual intercourse by a person in authority or fiduciary relationship, public servant, or superintendent of a custodial institution, or management or staff of a hospital who abuses the authority to induce or seduce any woman under his custody or charge or present in the premises to have sexual intercourse with him. (Section 376-C)

Gang rape i.e., rape by one or more persons constituting a group or acting in furtherance of a common intention. (Section 376-D).

The following grounds constitute aggravated rape under the IPC:

Rape on a woman below the age of 16 years;¹¹²
Rape on a woman suffering from mental or physical disability;¹¹³
Rape by a relative, guardian, teacher, or person in a position of trust or authority;¹¹⁴
Rape by a person on the management or staff of a jail, remand home, place of custody, women’s or children’s institution on any inmate within that institution;¹¹⁵
Rape by a person on the management or staff of hospital on a woman in the hospital;¹¹⁶
Rape by a person in a position of control or dominance over the woman;¹¹⁷
Rape by a police officer within the limits of the police station, premises of any station house, or on a woman in his or his subordinate officer’s custody;¹¹⁸ by a public servant on a woman in his or his subordinate officer’s custody;¹¹⁹ by a member of the armed forces in the area in which he is deployed;¹²⁰
Rape committed during communal or sectarian violence;¹²¹
Rape committed on a woman knowing her to be pregnant;¹²²
Causing grievous bodily harm, maiming, disfiguring or endangering the life of a woman;¹²³
Repeatedly raping the same woman;¹²⁴

1.1.1. Sexual Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act)

Under the Atrocities Act, the intentional touching of a woman belonging to SC or ST by a person having knowledge about her identity is an offence when the touch

112 IPC, Section 376(2)(i).

113 IPC, Section 376(2)(l).

114 IPC, Section 376(2)(f).

115 IPC, Section 376(2)(d).

116 IPC, Section 376(2)(e).

117 IPC, Section 376(2)(k).

118 IPC, Section 376(2)(a).

119 IPC, Section 376(2)(b).

120 IPC, Section 376(2)(c).

121 IPC, Section 376(2)(g).

122 IPC, Section 376(2)(h).

123 IPC, Section 376(2)(m).

124 IPC, Section 376(2)(n).

is of a sexual nature and without the woman’s consent.¹²⁵ The term “woman” signifies a “female human being of any age” and would therefore include girls below the age of 18 years.¹²⁶ Using words, acts, or gestures of a sexual nature towards a woman belonging to SC or ST having knowledge about her identity is also an offence.¹²⁷ These sexual offences under the Atrocities Act are not gender neutral in nature and are only applicable as against female victims. Both these offences are punishable with a minimum term of six months imprisonment that can extend to five years and fine.¹²⁸ In cases under these provisions, the prosecution will have to establish that the accused was not a member of SC or ST, the accused had

knowledge that the victim belonged to a SC or a ST, and that the nature of the touch was sexual in nature.

The term “consent” has been defined to mean “an unequivocal agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act”.¹²⁹ It has been clarified that the absence of physical resistance to an act of a sexual nature cannot by itself be construed as consent for the sexual activity.¹³¹ Further, the woman’s sexual history, including with the offence will not imply consent or mitigate the offence.¹³¹

The police should collect the relevant certificates to establish the identity of the victim.
The provisions of the SC and ST (Prevention of Atrocities) Rules, 1995 and the Amendment to the Rules in 2016, along with other advisories and guidelines, will have to be adhered to while investigating cases involving offences under the Atrocities Act as well as the POCSO Act.
The investigation should therefore be done by a police officer not below the rank of a Deputy Superintendent of Police assigned by the State Government, DGP, or SP.¹³²

125 Atrocities Act, Section 3(1)(w)(i).

126 IPC, Section 10 read with Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1988 as amended in 2015, Section 2(1)(f).

127 Atrocities Act, Section 3(1).

128 Atrocities Act, Section 92.

129 Atrocities Act, Explanation to Section 3(1)(w).

130 Atrocities Act, first proviso to Section 3(1)(w).

131 Atrocities Act, second proviso to Section 3(1)(w).

132 SC and ST (Prevention of Atrocities) Rules, 1995, Rule 7(1).

The appointed IO should complete the investigation on top priority and submit the report to the SP, who should forward it to the DGP or Commissioner of Police of the State Government.¹³³
The OIC of the concerned police station should file the charge-sheet and conduct the investigation within 60 days.¹³⁴
Reasons for the delay in investigation or filing of charge-sheet should be explained in writing by the IO.¹³⁵
Failure to read out to the informant the information orally given and reduced to writing before taking signature, failure to register a complaint or FIR under the POA Act and under appropriate sections, failure to furnish copy of the information recorded to the informant, failure to record statement of the victims or witnesses, failure to conduct the investigation and file charge before the Special Court within 60 days and to explain delay if any, in writing, failure to correctly prepare, frame and translate any document or electronic record, or perform any duty under the Act or Rules will constitute willful neglect of duties. It is punishable with imprisonment for a minimum term of six months and can extend to one year.¹³⁶ Charges against the public servant can be booked only on the recommendation of an administrative inquiry and the cognizance can be taken by a Special Court which can direct penal proceedings against such public servant.¹³⁷
In Dr. Subhash Kashinath Mahajan v. State of Maharashtra,¹³⁸ in its decision dated 20 March 2018, the Supreme Court has issued the following directions with respect to arrest of persons under the Atrocities Act:
- A public servant can be arrested only after approval is received from the appointing authority. In case of a non-public servant, approval of the S.S.P, which can be granted in appropriate cases after recording reasons. The reasons have to be further scrutinized by a Magistrate for permitting further detention.
- “To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.”

133 SC and ST (Prevention of Atrocities) Amendment Rules, 2016, Rule 4 which has substituted Rule 7(2) with the above-described provision.

134 Ibid.

135 SC and ST (Prevention of Atrocities) Amendment Rules, 2016, Rule 4 which has introduced Rule 7(2A).

136 Atrocities Act, Section 4 as amended by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.

137 Ibid, Sections 4(2) proviso and 4(3).

Violations of the above two directions will be actionable by way of disciplinary action as well as contempt.

1.1.2. Sexual Offences under the Rights of Persons with Disabilities Act, 2016 (RPD Act)

Under the RPD Act, assaulting or using force with the intention of outraging the modesty of a woman with disability is an offence.¹³⁹ Sexual exploitation of a child with disability by a person in a position to dominate the will of the child is also an offence.¹⁴⁰ Both these offences are punishable with a minimum term of six months imprisonment that can extend to five years and fine.¹⁴¹

The RPD Act also requires the government to enable persons with disabilities to “access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigation powers without discrimination on the basis of disability.”¹⁴² This would imply that the physical environment and communications within Special Courts under the POCSO Act, court complexes, police stations, as well as Commissions for Protection of Child Rights, CWCs, JJBs, etc., are accessible to all children with disabilities.

Section 7(4), RPD Act obligates a police officer who receives a complaint or comes to know about abuse, violence or exploitation toward a person with disability to inform such a person about the right to apply to an Executive Magistrate for protection, details of the jurisdictional Executive Magistrate, details of the nearest organization or institution working for persons with disabilities, right to free legal aid, and the right to file a complaint under the RPD Act or any other law dealing with such an offence.These duties are in addition to the duty of the police officer to follow the procedures if the information relates to the commission of a cognizable offence.¹⁴³

1.1.3. Sexual Offences under the Information Technology Act, 2000 (IT Act)

Section 67B, IT Act criminalizes the publication or transmission of material depicting children i.e., persons who have not completed 18 years of age, in a sexually explicit act in an electronic form.¹⁴⁴ The provision also criminalizes:

Creation of text or digital images, collection, seeking, browsing, downloading, advertising, promoting, exchanging or distributing material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or

139 RPD Act, Section 92(b). 140 RPD Act, Section 92(d). 141 RPD Act, Section 92.

142 RPD Act, Section 12(1).

143 RPD Act, Section 7(4) proviso.

144 IT Act, Section 67B(a).

Cultivating, enticing or inducing children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
Facilitating abusing children online; or
Recording in any electronic form own abuse or that of others pertaining to sexually explicit act with children

For more information on cyber offences against children refer to Chapter 5.

1.1.4. Sexual Offences under the Indecent Representation of Women Act, 1986

The publication of advertisements, production, sale, distribution, circulation or sending by post anything depicting a woman – her figure, form, body, or any part

in way that has the “effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals” are offences under the Indecent Representation of Women Act, 1986.Both these offences are bailable and cognizable.

Publications proven to be for the public good on the ground that they are in the interest of science, literature, art or learning or objects of general concern or publications kept or used for bona fide for religious purposes are exempted. Representations in ancient monuments, temples, cars used for conveyance of idols or used for religious purposes, and films to which Part II of the Cinematography Act, 1952 applies are also exempt.

1.1.5. Sexual Offences under the Goa Children’s Act, 2003

The Goa Children’s Act, 2003 defines sexual offences to include grave sexual assault, sexual assault, and incest.¹⁴⁵ It is gender neutral qua the victim and the accused, The term sexual assault includes touch and non-touch based sexual acts such as¹⁴⁶:

Sexual touching with any body part or object;
Voyeurism;
Exhibitionism;
Showing pornographic pictures or films to minors;
Making children watch others engaged in sexual activity;

145 Goa Children’s Act, 2003, Section 2(y).

146 Goa Children’s Act, 2003, Section 2(y)(ii).

Issuing threats to sexually abuse a minor;
Verbally abusing a minor using vulgar and obscene language
Non-touch and touch based sexual acts, while grave sexual assault includes penetrative sexual acts as well as making children pose for pornographic photos or films.

Grave sexual assault includes penetrative as well as non-penetrative sexual acts such as¹⁴⁷:

Vaginal, oral, or anal intercourse;
Use of objects with children;
Forcing minors to have sex with each other;
Deliberately causing injury to the sexual organs of children;
Making children pose for pornographic photos or films;
Rape

Incest has been defined to mean “commission of a sexual offence by an adult on a child who is a relative or is related by ties of adoption.”¹⁴⁸ Note that the term incest does not appear in any of the legislations mentioned above.

1.1. Processes

Procedures to be followed by the police/ Special Juvenile Police Unit (SJPU)

The POCSO Act and Rules stipulate the procedures that should be followed by the police and SJPU in a case of sexual offence against a child. Procedures have also been prescribed under the Cr. P.C in respect of sexual offences against women. Failure to record the commission of a sexual offence under the POCSO Act is an offence punishable with imprisonment of either description that can extend to six months or fine or both.¹⁴⁹ Failure to record sexual offences under the IPC is punishable with a fine and rigorous imprisonment for a minimum of six months, which can extend to two years.¹⁵⁰ If a police officer knowingly disobeys the direction of law, which prohibits her or him from requiring the attendance at any place of any person for investigation, she or he can be punished with fine and rigorous imprisonment for a minimum of six months which can extend to two years.¹⁵¹ For instance, if a police officer summons a child to the police station for recording a statement in the night time, he can be held liable for doing so in contravention of Sections 24(1) and 24(4) of the POCSO Act.

147 Goa Children’s Act, 2003, Section 2(y)(i). 148 Goa Children’s Act, 2003, Section 2(y)(iii). 149 POCSO Act, Section 21(1).

150 IPC, Section 166-A(c).

151 IPC, Section 166-A(a).

The chart below depicts the steps that should be taken by the police/SJPU under the POCSO Act and Rules as well as the Cr. P.C. They are not necessarily sequential as in some cases the police may have to facilitate emergency medical care or care and protection before recording the FIR.

Recording of Information

Entry: Record entry in a book about every report received about commission or apprehension of commission of a sexual offence in writing, ascribe an entry number, and read over to the informant. (Section 19(2), POCSO Act)
FIR: Where information relates to commission, attempt or abetment of a cognizable offence, register a FIR as per Section 154, Cr. P.C and give a free copy to the informant. (Rule 4(2)(a), POCSO Rules)
Recording of information given by child: If the child is the informant, the report should be recorded in simple language to ensure child can understand contents being recorded. (Section 19(3), POCSO Act)
Person recording the information: In cases of sexual offences under the IPC, the information should be recorded by a woman police officer or any woman officer. (Section 154(1), first proviso, Cr.P.C.)
Recording information given by a child with disability: Information by a girl temporarily or permanently disabled, mentally or physically, should be recorded by a police officer at her residence or at a convenient place of her choice in the presence of an interpreter or special educator and it should be videographed. (Section 154(1), second proviso, Cr. P.C.)
Assistance of Experts: Take assistance of a qualified interpreter, translator, special educator, or person familiar with the manner of communication of the child, or experts, if necessary. (Section 19(4), POCSO Act)
Information: Give details to the informant about the name, designation, contact information of the officer making the report and the details of the supervisor. (Rule 4(1), POCSO Rules)

Dos & Don’ts

Dos

Information received under Section 19(1) should be recorded by the police without exception.¹⁵²
The child-informant should be made comfortable by ensuring the presence of a parent, guardian, or person whom the child trusts.
SHO should ensure that a lady police official/officer not below the rank of the Sub-Inspector should be available around the clock.¹⁵³ While this is applicable to Delhi, other State Police may consider adopting this measure as well.

152 NCPCR, Monitoring Guidelines for NCPCR/SCPCR for Roles and Functions of Various Stakeholders: Police, Special Courts and Special Prosecutors, prepared by Lawyers Collective (LCWRI) and UNICEF, p.24.

153 Delhi Police, Standing Order No. 303 of 2009 – Guidelines to be followed by the police while investigating cases of rape, p.4.

If the child victim has come to the PS, a quiet place within the police-station should be identified where children can be seated and the information recorded.· FIR should be recorded immediately if the offence is cognizable.
Information received on telephone or cellphone pertaining to cognizable offences, if reliable, should be recorded as FIR.¹⁵⁴
A list of interpreters, translators, and special educators should be obtained from the District Child Protection Unit (DCPU) in advance.
Interactions with the child should be in an age appropriate, and developmentally appropriate manner. [Refer to Section I.2, on Communication with a child].
All applicable provisions under the POCSO Act, IPC, RPD Act, IT Act, Atrocities Act, and other relevant laws should be identified and included in the FIR.
Documents relating to the age of the victim such as birth certificate from the school, matriculation or equivalent certificate from the concerned examination Board, or a birth certificate given by a corporation or municipal authority or Panchayat should be collected.
In the absence of above-mentioned documents, an ossification test or any other latest medical age determination test should be requested.

Don’ts

Local police should not direct the informant/child to approach the SJPU instead and vice-versa.¹⁵⁵
The informant/child should not be kept waiting or asked to return later to lodge the report or FIR.
The police should not avoid recording the report to verify or confirm the information.¹⁵⁶
The informant/child should not be directed to a different police station citing want of jurisdiction. An FIR should be lodged, all the steps that are urgently called for should be undertaken (for example, medical care if the person requires it; apprehension of the accused if the victim is in danger from that person, etc) and thereafter transferred to the police station having jurisdiction.
If the informant is a child, the words used by the child should be recorded verbatim to ensure that no discrepancies arise when the child is examined or cross-examined in court.
The informant/child should not be humiliated and no aspersions should be cast on their character.
The police should not refuse to record a report or lodge FIR or ask the informant to compromise the matter with the accused.

154 NCPCR, Monitoring Guidelines for NCPCR/SCPCR for Roles and Functions of Various Stakeholders: Police, Special Courts and Special Prosecutors, prepared by Lawyers Collective (LCWRI) and UNICEF, p.29.

155 Id at p.24.

156 Id at p.25.

No disbelief or doubt should be expressed at the time of recording the report or FIR, especially in cases of alleged sexual abuse by a family member or relative.
The accused should not be asked to come to the police station in the presence of the victim for verification or confrontation.

Sending Report to the CWC and Special Court

Reporting receipt of case: Report to the Special Court and CWC within 24 hours of the recording of the information including steps taken to ensure care and protection. (Section 19(6), POCSO Act).
Reporting about Support Person: Report to the Special Court about the assignment of a support person to the child within 24 hours of such assignment. (Rule 4(9), POCSO Rules).

Dos and Don’ts

Dos

Obtain the roster indicating the CWC member available during holidays, Sundays, and after hours every month.
Transmit information to the Special Court and CWC about cases recorded, electronically or through other means.
If the CWC does not have an official email id, consider seeking the assistance of the DCPU to transmit information to the CWC.
Upon completion of investigation, file the charge sheet before the Special Court under the POCSO Act.

Don’ts

The charge-sheet should not be filed before the Magistrate, as is done in other crimes, but before a Special Court as it can take direct cognizance under Section 33(1), POCSO Act.

Ensure Immediate Care and Protection

Immediate arrangements: Make arrangement for shelter, medical treatment, including admitting the child to a Shelter Home or hospital etc., within 24 hours if child needs care and protection, after recording reasons in writing. (Section 19(5), POCSO Act)
Production before the CWC: Produce the child before the CWC within 24 hours if the offence has been committed, attempted, or is likely to be committed by a person residing in the same or shared household as the child, or in a CCI and the child doesn’t have parental support, or the child is without a home and parental support. (Rule 4(3), POCSO Rules) Submit a report in Form 17, JJ Model Rules containing the details of the child as well as the circumstances in which the child was received or found. (Rule 18(2), JJ Model Rules)
If the child cannot be produced, the CWC should be informed so that they can reach out to the child where the child is located. (Proviso to Rule 18(1), JJ Model Rules)

Child victim of sexual abuse who is below two years of age or who is medically unfit need not be produced physically before the CWC and a written report along with the child’s photograph can be sent to the CWC within 24 hours. The child can be produced before the CWC when the child is medically fit along with a medical certificate. (Rule 18(3), JJ Model Rules)

Dos & Don’ts

Dos

Obtain a list of Shelter Homes, Children’s Homes, and Fit Facilities, from the DCPU where a child can be placed for immediate care and protection.
If the victim is a child with disability, inform the child and the child’s parent or guardian of the option to approach an Executive Magistrate for protection orders and maintenance.
If the child victim and her parent or guardian has also been subjected to domestic violence, inform them of the reliefs available under the Protection of Women from Domestic Violence Act, 2005 such as residence orders, protection orders, and maintenance.

Don’ts

Child victims should not be produced before the CWC for counselling or any other purpose if they do not fall under Rule 4(3), POCSO Rules.
The police should not insist that the child be institutionalized only to prevent the child from turning hostile.

Facilitate Medical Examination and Emergency Medical Care

Emergency medical care: Facilitate emergency medical care in the nearest hospital or medical care facility in cases requiring urgent medical care and in cases under Sections 3,5, 7, and 9. (Rule 5(1), POCSO Rules)
Medical examination: Facilitate medical examination of the victim within 24 hours of the report. (Section 27, POCSO Act & Section 164A, Cr. P.C)
Collection of samples: Ensure that samples collected are sent to the State Forensic Science Laboratory (FSL) at the earliest. (Rule 4(2)(d), POCSO Rules)
Free First-aid: Ensure that victim receives first-aid or medical treatment free of cost at any hospital (public or private). (Section 357C, Cr. P.C)
Hand over medical examination report to Magistrate: Copy of the victim’s medical examination report should be immediately handed over to the Magistrate who records the victim’s statement under Section 164, Cr. P.C. [State of Karnataka

v. Shivanna, (2014) 8 SCC 913]

Dos & Don’ts

Dos

For medical examination, child should be taken to a hospital run by the Government or local authority within 24 hours.
For emergency medical care child should be taken to the nearest hospital.

A database of CMO’s and doctors within the jurisdiction where the child can be taken for medical examination should be maintained¹⁵⁷ in the Central Control Room and by the Duty Officer of the Police Station, or procured from the Health department.
A fund (e.g., Juvenile Justice Fund or Nirbhaya Fund) should be identified for escorting the victim to the hospital and back. Funds available under ICPS can be used for such activities.
The IO must communicate with the medical personnel to collect key information regarding the commission of the offence which may have been relayed by the victim to the doctor.
Where a registered medical practitioner declines to provide free first aid or medical treatment to a victim of rape, the IO must inform the practitioner that such refusal constitutes a criminal offence under section 166B of the IPC read with section 357C of the Cr.P.C.

Don’ts

The CWC should not be approached to compel the child to undergo medical examination against her/his wishes. Such a request would violate the child’s right to bodily integrity.
Medical practitioners providing treatment should not be asked to conduct interviews of children to ascertain whether he/she is stating the truth.
If the victim needs urgent medical treatment, registration of FIR should not be insisted upon before facilitating medical treatment.
The victim and the accused should not be escorted in the same vehicle for medical examination. · The victim and the victim’s family should not be discouraged from or scared about undergoing medical examination.
No money should be charged from the victim/family for travel expenses or medical examination.

Record Child’s Statement

Place and Presence of parent/trusted person: The child’s statement should be recorded at the child’s residence or a place of the child’s choice and in the presence of the child’s parent (non-offending), guardian, near relatives, local social worker, or person whom the child trusts. (Section 24(1), POCSO Act and proviso to Section 157(1)(b), Cr. P.C)
Person recording the statement: As far as practical, a woman Sub-Inspector should record the statement for offences under the POCSO Act. (Section 24(1), POCSO Act) A woman police officer or woman officer should record the statement of a girl against whom sexual offences under the IPC have been committed or attempted. (Section 161, second proviso, Cr. P.C)
Police officer should not be in uniform: The officer should be in plain clothes and not in uniform when the statement is being recorded. (Section 24(2), POCSO Act)

¹⁵⁷ Id at p.32.

Protections: It should be ensured that the child does not come in contact with the accused during investigation or while examining the child. (Section 24(3), POCSO Act) The child should not be detained in the police station during night time for any reason. (Section 24(4), POCSO Act)
Confidentiality: The identity of the child should be protected and no identifying information should be given to the media unless the Special Court authorizes it. (Section 23(1)(2), POCSO Act)
Recording of statement: The child’s statement should be recorded as spoken by the child. (Section 26(1), POCSO Act)
Audio-visual recording: The statement should be recorded through audio-visual means as far as possible. (Section 26(4), POCSO Act)
Assistance of Experts: Assistance of a qualified interpreter, translator, special educator, or person familiar with the manner of communication of the child, or experts, can be taken if necessary. (Section 26(3), POCSO Act)

Dos & Don’ts

Dos

Child’s statement should be recorded only when the child is fit.¹⁵⁸
The section of the Model Guidelines under Section 39, POCSO Act for conducting a forensic interview, i.e., an interview by police or investigative agencies to obtain a statement from the child that will facilitate the investigation and justice process, should be adhered to.
The child’s statement should be recorded while in plain clothes and not in police uniform.
The child should be informed that the statement will be recorded.
Officers responsible for recording statements of child victim should be trained on using audio-visual equipment to record statements.
The equipment for audio-visual recording should be checked before the time scheduled to record the statement, to ensure that it is working properly.
The list of translators, interpreters, special educators, counsellors and other experts should be obtained from the DCPU or such a list should be maintained at the police station if the DCPU has not prepared it.
The child’s parent, guardian, or any person whom the child requests for should be present with the child when the statement is recorded.

Don’ts

The child should not be compelled to give a statement until the child is fit to do so.
Avoid repeated interviews and interviews by multiple officers, as it can be intimidating· The words or language used by the child to explain the abuse should not be altered or modified.

158 UNODC, Standard Operating Procedures (SOP) On Investigating Crimes of Trafficking for Commercial Sexual Exploitation, (2007), p.31

No third person should be present in the room for recording the child’s statement through audio-visual means, besides the person whose presence the child requests for.· The audio-visual recording of the child’s statement should not be given to the media or any third party.
Information such as the name of the school, parents’ names or workplace, etc., that could lead to the child being identified should not be shared with the media or any person, or uploaded on any portal without suppressing the child’s identity.The child’s name and the names of family members can be substituted with pseudonyms.
The child should not be made to confront the accused in person for identification or any other purpose.
It should not be assumed that if the victim speaks about her love for the accused that a sexual offence has not been committed.

Facilitate Recording of 164 Statement by Magistrate

Facilitation for recording statement under Section 164 : Facilitate recording of the statement u/s 164 Cr.P.C. immediately in case of sexual offences under the IPC. [Section 164(5-A)(a), Cr. P.C]
Magistrate to whom child should be taken: Take the child within 24 hours preferably before any Metropolitan/preferably Judicial Magistrate for recording the 164 statement in cases of rape. [State of Karnataka v. Shivanna, (2014) 8 SCC 913]
The IO should take the child victim of rape to the nearest lady Metropolitan Magistrate, preferably lady Judicial Magistrate, as far as possible. [State of Karnataka v. Shivanna, (2014) 8 SCC 913]
Details and reasons for delay: The IO should record the date and time at which he learnt about the commission of rape and the date and time at which the child was taken to the Magistrate. Reasons for delay exceeding 24 hours should be recorded in the case diary and handed over to the Magistrate. [State of Karnataka

v. Shivanna, (2014) 8 SCC 913]

Dos & Don’ts

Dos

The child should be explained the purpose of the statement u/s 164, Cr. P.C.
If a Support Person has not been made available, the Social Worker attached to the SJPU should provide the child with an orientation of the courtroom, court complex, and the procedure that is likely to be followed by the Magistrate.
If the child is traumatized or is in discomfort, the Magistrate could be informed about it so that the 164 statement could be scheduled accordingly.

Don’ts

The recording of the statement under Section 164, Cr. P.C should not be delayed for want of escort or availability of a lady Magistrate.

The child should not be intimidated, convinced, coerced, or threatened to say or suppress any information or be misled into believing that doing so will help the case or allow the child to get done with the case quickly.
The police should not be present to operate the audio-visual equipment when the statement is being recorded by the Magistrate.

Keep Victim and Family Informed and Provide Information about Legal Aid

Information about support services: Inform the child and parent/ guardian/ person whom the child trusts about availability of support person, counselling services, and assist in contacting them. [Rule 4(2)(e), POCSO Rules] Information regarding available relief likecompensation, public and private emergency and crisis services and procedural steps should be shared.
Information about legal aid: Inform about the right to legal advice and counsel and right to be represented. [Section 40, POCSO Act and Rule 4(2)(f), POCSO Rules]
Information about the case and relief available: The child, family members, and support person should be kept informed about the procedural steps, status of investigation, arrest of the suspected offender, filing of charge-sheet, court schedule, bail, release or detention status, final verdict and sentence imposed. [Rule 4(12), POCSO Rules]

Dos & Don’ts

Dos

A list of Legal Aid Lawyers who can support child victims in accessing compensation or other reliefs should be maintained and made available to the victim and/or parent/guardian/ trusted person.
Legal assistance for the victim should be facilitated at the police station as the guidance and support to a traumatized victim at that stage would be of great assistance.¹⁵⁹
A list of service providers, counsellors, and NGOs who can support victims of sexual offences should be maintained and made available to the victim and/or parent/guardian/ trusted person.
A list of Central and State Schemes for compensation and rehabilitation and the contact information of the authority responsible for sharing with victims should be maintained and made available to the victim and/or parent/guardian/ trusted person. [Refer to the list of Central and State Schemes relevant for victims of sexual offences below.]
The process of applying for State Victim Compensation should be initiated, where applicable and the victim/parent/guardian should be apprised about its status.· The child and the child’s family/guardian/trusted person should be informed if the accused is released on bail.

¹⁵⁹ Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

Complaints from the child and the child’s family/guardian/trusted person about threats or attempts to foster a compromise by the accused should be promptly responded to.
The victim and parent/guardian/ trusted person should be informed about their right to appeal an acquittal under Section 372 Cr. P.C.

Don’ts

The child and the child’s family, guardian or trusted person should not be discouraged from approaching NGOs, lawyers, counsellors or support persons.
The victim and the victim’s family should not be kept in the dark about the progress or developments in the case.

Conduct Investigation and File Charge-sheet

Forensic samples: Samples collected for forensic tests should be sent to the forensic laboratory at the earliest.¹⁶⁰
Diary entries: The IO should enter proceedings in the investigation in the diary day by day and record information about the time at which information reached him, time at which investigation began and closed, places visited, and statement of the circumstances ascertained, and statement of witnesses.¹⁶¹ It should also be paginated.
Timeline: The investigation in a case of rape of a child may be completed within three months from the date on which information was recorded by the officer- in-charge of the police station.¹⁶²

Dos & Don’ts

Dos

Continuity should be ensured and care should be taken to ensure that multiple officers are not interacting with the child.
Investigation in cases involving offences under the Atrocities Act should be investigated by an officer not below the rank of DSP and specially appointed by the State Government, DGP, and SP.
Investigation in cases involving offences under the IT Act should be handled by an officer not below the rank of an Inspector¹⁶³ and by an officer conversant with the Act and having the requisite expertise and skills.
Statements of public witnesses, if available, should be recorded.
Statements of relevant witnesses should be recorded.· All relevant materials such as clothes of the victim and accused, mobile phones, laptops, etc., should be seized and sent for analysis by the Forensic Science Laboratory and Cyber Cell.

160 POCSO Rules, Rule 4(2)(d).

161 Cr.P.C., Section 172(1), (1-A), (2).

162 Cr.P.C., Section 173(1-A).

163 IT Act, Section 78

Whenever necessary, assistance of technical experts should be taken in sexual offences involving IT Act as well.
Entries in the case diary, especially the time at which information is received should be recorded accurately.
If the victim is pregnant, steps should be taken to make an application to the Special Court for a DNA test.
The chain of custody for forensic samples should be maintained.
Prompt action should be taken if the victim/family/guardian report threats or intimidation by the accused and a FIR should be registered under Section 506, IPC.
Care should be taken to ensure that all relevant provisions are mentioned under the charge-sheet, especially the aggravated provisions under the POCSO Act and IPC.
Charges under the IT Act, 2000 should be framed in cases where the abuse has been filmed or the accused has cultivated, enticed, or induced the child into an online relationship.
Reports of a psychiatrist, medical prescriptions, and bill should be submitted along with the charge-sheet as they can corroborate the prosecution’s case, especially when physical signs of abuse are not found due to delay in reporting or any other reasons.
The child should not be made to repeat the statements to multiple officers and the statement should be recorded by the same officer.
The spot panchnama should be prepared with a lot of care and seriousness and only after actually visiting the spot.
The handing of forensic samples after collection to the FSL should not be delayedto avoid degeneration in the quality of samples.
The child should not be exposed to the accused at any stage of the investigation. Where identification is necessary, the photograph of the accused can be shown to the victim or the guidelines for test identification parade laid down by the Delhi High Court in Rakesh Kumar v. State,¹⁶⁴ may be adhered to.
Charges under the IT Act should not be excluded or not investigated owing to the belief that it may delay the filing of the charge-sheet.· Avoid delays in filing charge-sheets. Charges can be flied even if reports from FSL are pending.
Delays in receiving reports from FSL have to be escalated to the Director or Deputy Director of FSL through letter from the unit head of the Police, (Commissioner of Police or Superintendent of Police).

164 Crl. A. 513/1998, decided on – 30.05.2014.

1.1. Procedure for medical examination and emergency medical care

Based on the POCSO Act, IPC, Cr. P.C, and the Guidelines and Protocols for Medico-legal care for Victims and Survivors of sexual violence issued Ministry of Health and Family Welfare Guidelines:

All hospitals, government run or private, should provide first-aid or medical treatment immediately and free of cost to victims of acid attack, rape, rape resulting in permanent vegetative state, sexual intercourse by husband upon his wife

during separation, sexual intercourse by a person in authority, gang rape, or rape by a repeat offender.¹⁶⁵ Further, they should inform the police immediately about the incident.¹⁶⁶

Medical examination should be conducted by a registered medical practitioner in a government hospital or a hospital run by a local authority.¹⁶⁷
Consent of the child should be obtained when the child is above 12 years and in a position to give consent i.e., the child is physically, mentally, and psychologically fit. For children below 12 years, consent should be obtained from the parent or guardian, unless he/she is possibly the perpetrator.¹⁶⁸ In such situations, the Medical Superintendent or Resident Medical Officer can give consent on behalf of the child.¹⁶⁹ The medical report should clearly record, in writing, that consent of the child or of a competent person on the child’s behalf was taken.¹⁷⁰ Refusal for medical examination should also be recorded by the medical officer, in writing.
A girl child victim should be medically examined by a woman doctor.¹⁷¹ In the absence of a woman doctor, a male doctor can examine the child in the presence of a female attendant.¹⁷² The treatment or examination should not be delayed because of the non-availability of a woman doctor.

165 Cr.P.C., Section 357-C.

166 Ibid

167 Cr.P.C., Section 164-A(1). 168 MOHFW Guidelines, p.24. 169 Id at p.39.

170 Cr.P.C., Section 164-A(4). 171 POCSO Act, Section 27(2). 171 MOHFW Guidelines, p.20. 172 Ibid

A transgender/intersex child should be given the choice as to whether the child wants to be examined by a male or female doctor.¹⁷³
Medical examination and emergency medical care should be conducted in the presence of a parent or a person whom the child trusts or has confidence in.¹⁷⁴ If such a person cannot be present, the medical examination should be conducted in the presence of a woman nominated by the head of the medical institution.¹⁷⁵
Report of medical examination should contain name and address of the child and the person who brought the child, age of the child, materials collected from the person of the child for DNA profile, injury marks, general mental condition, reasons for each conclusion arrived at, and the exact time of commencement and completion of the examination.¹⁷⁶
Privacy of the child should be ensured during emergency medical care and examination.¹⁷⁷
Legal or magisterial requisitions cannot be demanded before conducting medical examination or providing emergency medical care.¹⁷⁸ In case the victim has approached the medical facility prior to registering a case, then the medical officer has a responsibility to enter the case into the Medico- Legal Register and inform the jurisdictional police regarding the same.
During emergency medical care:¹⁷⁹
- cuts, bruises, injuries including genital injuries should be attended to;
- child should be provided treatment for exposure to STDs and HIV and necessary prophylaxis;
- in case of a possible pregnancy, the option of emergency contraceptives should be discussed with a child who has attained menarche, in the presence of a parent or person whom the child trusts;
- referrals for mental or psychological health or counselling should be made, if necessary;
- follow-up visits should be scheduled and the relevance and importance of such visits to be informed to child and care-giver.

173 POCSO Act, Section 27(3) and POCSO Rules, Rule 5(2)

174 POCSO Act, Section 27(4).

175 Cr.P.C., Section 164-A(2)(3)(5).

176 POCSO Rules, Rule 5(2).

177 POCSO Act, Section 27(1) and POCSO Rules, Rule 5(3).

178 POCSO Rule, Rule 5(4).

179 Ministry of Health and Family Welfare Guidelines, p.34.

The child’s and guardian’s consent and medical opinion is sufficient for termination of pregnancy below 20 weeks. No approval is required from the CWC or any other authority for such termination. If the pregnancy exceeds 20 weeks, the High Court or Supreme Court may have to be approached.

The Product of Conception (PoC) should be collected, packed, labelled, sealed in the presence of police officer and handed over to police to send to FSL for DNA matching with accused. It should be transported by the police in an ice-box with temperature around 4 degree Celsius (2-8 degree Celsius) at all times.¹⁸⁰

Dos

Medical report should indicate whether there is evidence of recent sexual activity.¹⁸¹
A victim of sexual assault should be spoken to in a non-threatening environment and with sensitivity.¹⁸²
The child and the parent, guardian, or trusted person should be explained the purpose and process of medical examination and fears and doubts should be answered sensitively.
A detailed history should be taken from child which includes time of incident, place, person/s involved with description, frequency of assault / abuse and description of acts
The medical examination of the child should be conducted in a room that is away from intimidating and inappropriate spaces like the labour ward, emergency, morgue etc.

Don’ts

Medical report should not indicate whether rape has or has not been committed. This is because “rape is a crime and not a medical condition”.¹⁸³
Police officers should not be allowed in the room during medical examination or noting of history.¹⁸⁴
The two-finger test should not be used and nor should any stigmatizing language or remarks about the victim being “habituated to sexual intercourse” or prior sexual experience be made.¹⁸⁵ These offend the guarantee of dignity,

180 Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 endorsed Modi’s Medical Jurisprudence and Toxicology (21st ed).

181 CEHAT Manual, p.15

182 Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.

183 CEHAT Manual, p.15.

184 Lillu v. State of Haryana, AIR 2013 SC 1784; MOHFW Guidelines, p.60.

185 Ibid

privacy, physical and mental integrity available under Article 21, Constitution of India and have no bearing on a case of sexual violence.¹⁸⁶

A victim cannot be forced to be subjected to a medical examination, against his/her will, through use of force, threat or coercion.

1.2. Facilitation of Recording of Statement under Section 164, Cr.P.C., by the Magistrate

The POCSO Act does not mandate that a statement under Section 164, Cr.P.C. be recorded in every case. However, pursuant to the Criminal Law (Amendment) Act, 2013, Section 164(5-A)(a), the statement of victim against whom offences has been committed under Sections 354, 354-A, 354-B, 354-C, 354-D, 376(1), 376(2), 376-A, 376-B, 376-C, 376-D, 376-E or 509 of the IPC has to be recorded by a Judicial Magistrate. The statement should be recorded as soon as the commission is brought to the notice of the police.¹⁸⁷ In cases of rape, the IO should take the victim within 24 hours to any Metropolitan/preferably Judicial Magistrate for recording the 164 statement and preferably to a Lady Magistrate.¹⁸⁸

Child victim to be brought immediately: In case of sexual offences under the IPC, the IO should bring the child victim to the Magistrate immediately. [Section 164(5-A)(a)] In cases of rape, the IO should take the victim within 24 hours to any Metropolitan/preferably Judicial Magistrate for recording the 164 statement.¹⁸⁹
Reasons for delay: The reasons for delay in bringing the victim of rape within 24 hours should be recorded in the case diary and the copy of the same should be handed to the Magistrate.¹⁹⁰ For instance, if the child is traumatized or in no state to be physically taken for the 164 statement, this reason should be cited to the Magistrate to explain the delay.
Medical examination report: The IO should also hand over to the Magistrate a copy of the medical examination report.¹⁹¹
Unavailability of lady Magistrate: The POCSO Act does not mandate that the child should be taken to a lady Magistrate. The Supreme Court has also indicated that this is a preference and not a mandatory requirement. The priority should be on ensuring that the statement is recorded at the earliest. If a lady Magistrate is unavailable, the IO should not delay matters and take the child to any Metropolitan or preferably Judicial Magistrate.

¹⁸⁶ Cr.P.C., Section 164(5-A)(a).

¹⁸⁷ State of Karnataka v. Shivanna, (2014) 8 SCC 913.

¹⁸⁸ Ibid

¹⁸⁹ Ibid.

¹⁹⁰ Ibid.

¹⁹¹ POCSO Act, Section 28(1).

1.1. Procedures of the Special Court

Under the POCSO Act, the State Government in consultation with the Chief Justice of the High Court, should designate a Sessions Court to be a Special Court in every district to try offences under the Act.¹⁹² The Special Court can try offences under the POCSO Act and offences with which the accused is charged under the Cr.P.C. at the same trial.¹⁹³

Jurisdiction of Special Courts

The Special Court designated under the POCSO Act will have the jurisdiction to try offences in addition to those under the POCSO Act with which the accused has been charged under the Cr. P.C at the same trial.¹⁹⁴ Where the accused has been charged under the Atrocities Act along with the POCSO Act, the matter will be tried by the Special Court under the POCSO Act and not the Special Court under the Atrocities Act.¹⁹⁵

It will also have the jurisdiction to try offences relating to publication or transmission of sexually explicit material depicting children in any act or conduct or manner that facilitates abuse of children online under Section 67B, Information Technology Act, 2000.¹⁹⁶

The police should thus submit the charge-sheet to the Special Court under the POCSO Act.

Cognizance and Disposal

Special Courts can take cognizance directly without committal.(Section 33(1), POCSO Act)
They must record the evidence of the child within 30 days of taking cognizance and record reasons for the delay.(Section 35(1), POCSO Act)
They must complete the trial within one year of taking cognizance, as far as possible.(Section 35(2), POCSO Act)

Questioning Children

Special Courts should ensure that the Special Public Prosecutor and defence lawyer do not question the child directly. The questions to be put to the child

192 POCSO Act, Section 28(2).

193 Ibid.

194 In Re: A Ref u/s 395(2) Cr.P.C by S.J. v. Unknown, S.B. Criminal Reference Petition No. 1/ 2013, Rajasthan High Court-Jodhpur Bench; Reference Case No.1 of 2017, In the matter of reference under Section 395 of Cr.P.C. made by the learned Sessions Judge, Mahilar Court, Tiruchirappalli, in his letter in D.No.238/2016 dated 17.03.2017 decided on 28.04.2017 by the Madras High Court. 195 POCSO Act, Section 28(3).

196 POCSO Rules, Rule 7(2)

have to be communicated to the Special Court, who should put the questions to the child.(Section 33(2), POCSO Act)

They should permit frequent breaks to the child during trial, if necessary.(Section 33(3), POCSO Act)
They should not allow aggressive questioning or character assassination of the child and ensure that dignity is maintained (Section 33(6), POCSO Act)
Special Courts should take the assistance, if necessary, of a qualified and experienced translator or interpreter on payment of prescribed fees when recording the statement of a child. (Section 38(1), POCSO Act).
They should take the assistance, if necessary, of a qualified and experienced special educator or person familiar with the manner of communication of the child or an expert, when recording the statement of a child with mental or physical disability.(Section 38(2), POCSO Act)

Child-friendly atmosphere

Special Courts should create a child-friendly atmosphere by allowing a family member, guardian, friend, or relative whom the child trusts or has confidence in to be present. (Section 33(4), POCSO Act).
They should ensure that the child is not repeatedly called to testify in court.(Section 33(5), POCSO Act)
They should ensure that identity of the child is not disclosed at any time during investigation or trial unless the disclosure is in the interest of the child. Reasons should be recorded in writing if disclosure is allowed. (Section 33(7), POCSO Act)
Special Courts should determine the age of the child when the question arises before the court and adhere to the provisions of the JJ Act, 2015 on age- determination.(Section 34(2), POCSO Act)
They should ensure that the child is not exposed to the accused at the time of recording the evidence and that the accused is able to hear the statement of the child and communicate with his advocate. Video conferencing, single visibility mirrors, curtains, or any other device should be used to facilitate this.(Section 36, POCSO Act)
They should conduct the trial in camera and in the presence of parents of the child or any other person in whom the child has trust or confidence. (Section 37, POCSO Act)
Special Courts should examine the child in a place other than the courtroom if the situation requires it.(Section 37, POCSO Act)

Compensation

Special Courts should direct payment of compensation (interim and final) for physical or mental trauma caused to the child or for the child’s immediate rehabilitation.They should determine quantum and direct the State Government to pay the compensation within 30 days. (Section 33(8), POCSO Act read with Rule 7, POCSO Rules)
In order for the Special Court to order for interim or final compensation, it is not pre-requisite for the child to file an application. The Special Court may order on his/her own accord where it is found to be appropriate.
A record of conviction is not mandatory for the provision of compensation. Where the Special Court is satisfied that a child has been a victim of sexual abuse, the judge may direct compensation to be paid in cases where the accused has been acquitted or even in cases where the accused has not identified or traced.¹⁹⁷ Interim compensation can be paid at any stage and is not linked to the child’s testimony.
The compensation ordered must be disbursed by the State Government within 30 days from the order.¹⁹⁸ The State Government may pay the sum from the Victims Compensation Fund or any other scheme or fund which has been established under section 357A of the Code of Criminal Procedure.
The quantum of compensation is not specified in the POCSO Act and it is based on the discretion of the judge deciding the matter. The POCSO Rules provides that while deciding the quantum of compensation, the judge must take into consideration the type, nature and severity of abuse, the extent of physical and mental harm caused to the child, expenditure incurred for medical treatment for physical and/or mental health, financial condition of the child, etc.¹⁹⁹

Support Persons

They should recognize the support persons appointed by the CWC or the family directly and allow them to be present during the child’s evidence. They should also allow them to also convey the child’s questions and fears about the evidence recording process. (Rule 4(8), POCSO Rules)

Legal Counsel on Behalf of Victim

Special Courts should recognize the right of the child to take assistance of a legal practitioner. (Section 40, POCSO Act)

197 POCSO Rules, Rule 7(4) and 7(5)

198 POCSO Rules, Rule 7(3)

199 POCSO Act, Section 34(1); JJ Act, 2015, Section 1(4)(i).

Dos and Don’ts for the Police

Information regarding appointment of support persons by the CWC, or the family directly, should be communicated to the Special Court by the IO.
The IO should inform the child and the child’s family about the child-friendly procedures under the Act and facilitate a prior interaction with the Special Public Prosecutor so that the child can be familiarized with the courtroom atmosphere and procedures.
The IO should provide timely information to the child and the family/guardian about the dates for the hearings and inform them about the outcome.
Requisite cooperation should be extended to the Support Person appointed by the CWC or the family.
Information about the child’s exams, school events, etc., should be provided to the Special Public Prosecutor (SPP) in advance so that the child’s examination and cross-examination can be scheduled accordingly.
Children and their families should not be prompted to compromise or turn hostile in court for any reason.
Police should play an active role in opposing bail for accused by providing SPP with necessary information, evidence and documentation. Any violations of the bail conditions should be brought to the notice of the SPP, so bail can be revoked.

1.2. FAQs

Is it sufficient to file charges only under the POCSO Act or should all relevant provisions be included in the charge-sheet?

All relevant provisions should be mentioned in the charge-sheet. This is because the ingredients and penalties may be different under different laws. For instance, rape of a 15-year-old girl would constitute aggravated rape under the IPC and penetrative sexual assault under the POCSO Act. Aggravated rape under the IPC would attract higher penalty than that of penetrative sexual assault under the POCSO Act. Further, an alleged act may constitute distinct offences under different laws. For instance, the accused may have filmed the abuse or shown the child pornography and then abused the child. In such cases, relevant provisions under the POCSO Act, IPC, and the IT Act should be applied as the act constitutes distinct offences under each of these laws.

• If a sexual offence against a child is allegedly committed by a person below 18 years, will the person be dealt with by the Special Court under the POCSO Act?

No, a person below 18 years who allegedly commits a sexual offence against a child will be dealt with by the Juvenile Justice Board (JJB) under the Juvenile Justice (Care and Protection of Children) Act, 2015.²⁰⁰ Such a person should be produced before the JJB after apprehension by the police or the SJPU.

• Can children above 16 years alleged to have committed a sexual offence be tried as adults?

A person above 16 years and below 18 years alleged to have committed penetrative or aggravated penetrative sexual offences can be treated as an adult if they are transferred to the Children’s Court by the Juvenile Justice Board and the Children’s Court decides to try the child as an adult. However, the child must first be produced before the JJB who will make the above assessment in accordance with the JJ Act.

• If the offence is allegedly committed by a child below 7 years, what is the process to be followed by the police?

According to Section 82, IPC “nothing is an offence which is done by a child under seven years of age.” Although an FIR will have to be lodged if the offence alleged is cognizable, no penal action can be taken against a child below 7 years. Such a child can, however, be produced before the CWC if the circumstances warrant it.

• Will the translator be a witness in the court?

A translator can be appointed by the Special Court to assist it in recording the testimony of a child. In such a situation, the translator is not a witness. However, if a translator has been used by the police to record the statement of the child, then she/he will be a witness. Summons can be issued to secure their appearance before the court.

• If the person alleged to have committed a sexual offence looks clearly above 18, but the defence produces document to show he is under 18, what should be done?

Under Section 94(1), JJ Act, 2015, appearance of a person can be relied upon only to conclude that the person is a child. It cannot be the basis to conclude that the person was an adult. According to Section 94(2), JJ Act, 2015, the birth certificate from school, matriculation or evaluation certificates will be considered to determine if the person is a child. If these documents are not available, the birth certificate by a corporation, municipal authority, or a Panchayat will be considered. If these are also unavailable, the JJB or CWC can order an ossification test or latest medical age determination test. The Special Court under the POCSO

Act could also adhere to the procedure prescribed under the JJ Act, 2015 for age- determination as in Jarnail Singh v. State of Haryana,²⁰¹ the Supreme Court has held that the procedure to determine age of a child in conflict with the law can be used to determine age of a child victim.

• If a child victim of rape escapes the clutches of the offender and manages to get into a train, and the offender follows her, will the Railway police ask her to go to the Police Station where she was raped or will they arrest the offender, rescue the girl and register the crime in the Railway PS?

The crime is continuing as the offender was chasing the victim. Therefore, the Railway Police has duty to nab the offender and rescue the child and take all actions according to law, including FIR registration. Even if the offender was not chasing her, the rescue of the victim and post-rescue care as well as registration of a crime at the Railway PS is mandatory. After the FIR is registered, the SHO of the Railway PS can transfer the case to the PS having original jurisdiction and till such time they take over, all urgent steps required have to be undertaken. It is reiterated that want of jurisdiction is not sufficient cause to delay lodging of FIR and taking protective measures.

Chapter 1, Annexure 1: Sexual Offences and Penalties

List of sexual offences and penalties under the POCSO Act
Offence	Minimum	Maximum	Fine
Penetrative Sexual Assault	7 years	Life imprisonment	
Aggravated Penetrative Sexual Assault	10 years (rigorous imprisonment	Life imprisonment	
Sexual Assault	3 years	5 years	
Aggravated Sexual Assault	5 years	7 years	
Sexual Harassment	–	3 years	
Use of a child for pornographic purposes	–	5 years	

Source: Raha, Giliyal, Sajjanashetty & Ramakrishnan, Frequently Asked Questions on the Protection of Children from Sexual Offences Act, 2012 and The Criminal Law (Amendment) Act, 2013, Centre for Child and the Law, National Law School of India University, Bangalore, (revised 2^nd ed 2016) pp. 31-32.

List of sexual offences and penalties under the IPC
Offence	Minimum	Maximum	Fine
Section 354: Assault or criminal force to a woman with intent to outrage her modesty	–	Two years	And/ Or
Section 354A(2): Sexual Harassment (physical contact and advance, sexual overtures, demand for sexual favours, showing pornography against will)	–	RI for 3 years	And/ Or
Section 354A(3): Sexual Harassment (making sexually coloured remarks)	–	1 year	And/ Or
Section 354B: Assault or use of criminal force to woman with intent to disrobe (abetment included)	3 years	7 years	
Section 354C: Voyeurism (watching or capturing image of a woman engaging in a private act or disseminating such images)	1st CV: 1yr 2nd CV: 3 years	1^st CV: 3 years 2nd CV: 7 years	 
Section 354D: Stalking (physical/electronic)	–	1^st CV: 3 years 2^nd CV: 5 years	 
Section 370(4): Trafficking of minor	RI 10 years	Life imprisonment	
Section 370(5): Trafficking of more than one minor	RI 14 years	Life imprisonment	
Section 370(6): Repeat trafficker of minors	Imprisonment for remainder of natural life		
Section 370A(1): Sexual exploitation of a trafficked manner	RI for 5 years	RI for 7 years	
Section 376(1): Rape	RI 7 years	Life imprisonment	
Section 376(2): Aggravated Rape (includes rape of a girl below 16 years of age)	RI 10 years	Life imprisonment for remainder of life	
Section 376A: Rape causing death or resulting in vegetative state of victim	RI 20 years	Life imprisonment for remainder of life or death
Section 376B:Sexual intercourse by husband upon his wife during separation	2 years	7 years	

Section 376C: Sexual intercourse by a person in authority (includes superintendent or manager of children’s institutions)	RI 5 years	RI 10 years	
Section 376D: Gang rape	RI 20 years	Life imprisonment for remainder of life	
Section 376E: Repeat offenders under sections 376, 376A, 376D	Imprisonment for remainder of life or death
Section 377: Unnatural Offences	Life imprisonment or imprisonment upto 10 years		
Section 509: Word, gesture or act intended to insult the modesty of a woman	–	SI 3 years	

List of sexual offences and penalties under the Goa Children’s Act, 2003
Offence	Minimum	Maximum	Fine
Section 6(19): Failure to ensure child under care and custody of Children’s Home is not exposed to sexual offences, child trafficking or child prostitution.	–	3 years	Upto Rs. 1 lakh
Section 8(2): Punishment for sexual assault	–	3 years	Upto Rs. 1 lakh
Section 8(2): Punishment for grave sexual assault	10 years	Life imprisonment	Rs. 2 lakhs
Section 8(2): Punishment for incest	10 years	Life imprisonment	Upto Rs. 2 lakhs
Section 8(14): Punishment for failure of a developer of photographs or films to report discovery of sexual/ obscene depictions of children	1 year	3 years	And/or Minimum of Rs. 50,000
Section 9(4): Exploitation of a child for commercial sexual exploitation		7 years	Upto Rs. 1 lakh
Section 9(7): Abetment of performance of ceremony or act for dedicating minor girl child as devadasi		3 years	Upto Rs. 2000
Section 9(7) proviso: Abetment of above offence by parents	2 years	5 years	Rs. 2000– Rs. 5000

Chapter 1, Annexure 2: Significant Court Rulings

Role of the Police in facilitating statement under Section 164, Cr.P.C

State of Karnataka v. Shivanna (Supreme Court)²⁰²: In cases of rape, IO should take the victim immediately, as far as possible, to the nearest lady Metropolitan/ preferably lady Judicial Magistrate for recording the statement under Section 164, Cr.P.C. The IO should record the date and time at which he learn about the commission of rape and the date and time at which the victim was taken to the Magistrate. Reasons for delay exceeding 24 hours should be recorded in the case diary and a copy should be handed to the Magistrate along with a copy of the medical examination report.

2. Jurisdiction of Special Courts

Kum. Shraddha Meghshyam Velhal v. State of Maharashtra, Criminal Application 354 of 201. Decided by the Bombay High Court on 03.07.14: In cases under the POCSO Act, police officers should produce the accused for remand before the Children’s Court and not before the Magistrates Court.

Prasad v. State of Kerala, (2013) 2 KLT 942: The POCSO Act does not prevent Magistrates from ordering first remand of an accused under the Act, since Section 167, Cr.P.C. allows it. However, subsequent remand orders or bail applications should be made only before the Special Court under the POCSO Act.

3. Nature of Offences under the POCSO Act

Santosh Kumar Mandal v.State, Bail Appln No. 1763/2016, Delhi High Court (28 September 2016): “Considering the gravity of the offences and the special mechanism provided under POCSO Act to hold that the offences are bailable though cognizable and would fall in category 3 would be rendering an interpretation to the classification provided in second part of First Schedule of Cr.P.C contrary to the object of the special enactment. Thus offences punishable under POCSO Act including Section 12 are cognizable and non-bailable offences.”

Note: The above interpretation is applicable only in the State of Bombay. In the absence of specifications of the nature of offences under the PCOSO Act, the Cr.P.C will apply.

4. Rape is non-compoundable

Shimbhu v.State of Haryana, (2013) 10 SCALE 595: “Rape is a non- compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle.”

202 Available at https://indiankanoon.org/doc/2622362/

5. Use of Two-finger test unconstitutional

Lillu v. State of Haryana, AIR 2013 SC 1784:In this case, the Supreme Court held that the “two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

6. Credibility of testimony of rape victims and child witnesses

State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: “Corroborative evidence is not an imperative component of judicial credence in every case of rape…It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’ lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.”

Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341: “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.”

Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635: “The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.”

Balaji Sarjerao Kamble v. State of Maharashtra, Criminal Appeal No. 28 of 2016 decided by the Bombay High Court on 29.08.17.

Bearing in mind the age of the child victim who was about 6 to 8 years at the time of the alleged rape, the Bombay High Court held that “merely because date of the

incident is not stated by the victim, her evidence cannot be doubted. The [victim] is not expected to have such chronometric sense at the tender age.”

1. Delay in lodging FIR

State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404

Setting aside the acquittal in a case under Sections 376 and 506 of the IPC on grounds of delay in lodging the FIR, the Supreme Court held: “Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case.”

2. Test-identification

In Rakesh Kumar v. State,²⁰³ the Delhi High Court laid down the following guidelines for test identification parade (TIP) where children below 12 years of age had to identify an accused:

In every case where witness is a child below the age of 12 years TIP proceedings shall be held in one of the court rooms attached with the main Tihar Jail so that the child does not enter the main Jail Complex to reach the Test Identification Parade room.
Installation of semi reflective screen or any other screen or mechanism in a room where TIP proceedings will be conducted so that the child witness is not confronted face to face with the criminals participating in the TIP proceedings.
A person accused of the offence and the others who may be participating in the TIP will be explained the procedure and the manner of TIP proceedings to be held in a case of child witness.
No officer below the rank of Deputy Superintendent of Jail shall accompany the child witness at the time of TIP proceedings and endeavour shall also be made by the Jail Superintendent that, so far as possible only female officer is deployed wherever witness happens to be a girl child for the purposes of identifying the accused person.

²⁰³ Crl. A. 513/1998, decided on – 30.05.2014.

No police official shall be seen in a uniform right from the stage when the child enters the TIP Room and till he/she leaves the premises after the completion of TIP proceedings. The child witness shall be entitled to accompany his parents/guardians or any of his close relatives so as to make the child comfortable before participating for identifying the accused in the Test Identification Parade.
Endeavour shall be made by Director General (Prisons)/Jail Superintendent that a lady officer who is more humane, sensitive and compassionate is given duty to accompany the child witness.
The child friendly atmosphere will be created in a room where the child is brought first and the stay of the child will be made most comfortable so that the child finds the place to be attractive and conducive to his/her requirements.
Necessary arrangements for light refreshment to the general liking of children below the age of 12 years shall also remain in place to keep the mood of the child upbeat.

3. Duty of police to facilitate compliance with Section 35(1), POCSO Act

Vinay v. State of Karnataka, Criminal Petition No. 1105/2017 decided on 13.07.2017 by the Karnataka High Court.

The Karnataka High Court laid emphasis on the role of the Special Court in ensuring that the testimony of the child is recorded within 30 days from cognizance in this case. Additionally, it noted that the Investigating Officer should also adhere to this mandate. It held “if the Presiding Officer notices callous attitude on the part of the Investigating Officer in producing the properties, the same shall be brought on bench in the ‘crimes’ meeting held with the Police Officers of the District and the matter shall be brought to the notice of the superior Police officers. Even if the Investigating officer fails to produce the property on the date called for, that shall not stop the Court from recording the statement of the victim child …”

4. Procedures to be followed in sexual offences against children

Sakshi v.Union of India, AIR 2004 SC 3566: Guidelines were issued by the Supreme Court to be followed during the trial of child sexual abuse or rape in this case. These guidelines are particularly significant for the on-going trials of rape cases before the enactment of the POCSO Act. The guidelines are:

a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding

Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

Virender v. State of NCT of Delhi, 2010 III AD (Delhi) 342

The Delhi High Court laid down guidelines to be followed by the police, Magistrate, and court in sexual offences against children based on decisions of the Supreme Court and the High Court. The guidelines relevant to the police and not expressly mentioned in the POCSO Act are as follows:

On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately. (Ref: Court On Its Own Motion v. State and Anr.)
Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.(Ref : Mahender Singh Chhabra v. State of N.C.T. of Delhi and Ors.)
The statement should be recorded promptly without any loss of time. (Ref: Court On Its Own Motion v. State and Anr.)
The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case. (Ref: Court On Its Own Motion v. State and Anr.)
In the event the Investigating Officer should so feel the necessity, he may take the assistance of a psychiatrist.(Ref: Court On Its Own Motion v. State and Anr.)
The Investigating Officer shall ensure that the investigating team visits the site of the crime at the earliest to secure and collect all incriminating evidence available. (Ref: Court On Its Own Motion v. State and Anr.)
The Investigating Officer shall promptly refer for forensic examination clothings and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date. (Ref: Court On Its Own Motion v. State and Anr.)
The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s. (Ref: Court On Its Own Motion v. State and Anr.)

To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.(Ref : Mahender Singh Chhabra v. State of N.C.T. Of Delhi and Ors.)
Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also shall be done with a view to obviate subsequent objections to the genuineness of the dying declaration.(Ref : Mahender Singh Chhabra v. State of N.C.T. Of Delhi and Ors.)
The investigations for the aforesaid offences shall be personally supervised by the ACP of the area. The concerned DCP shall also undertake fortnightly review thereof. (Ref : Mahender Singh Chhabra v. State of N.C.T. Of Delhi and Ors.)
The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any. (Ref : Mahender Singh Chhabra

v. State of N.C.T. Of Delhi and Ors.)

Other general guidelines laid down in this case were:

Effort should be made to ensure that there is continuity of persons who are handling all aspects of the case involving a child victim or witness including such proceedings which may be out of criminal justice system. This may involve all steps commencing from the investigation to the prosecutor to whom the case is assigned as well as the judge who is to conduct the trial.
The police and the judge must ascertain the language with which the child is conversant and make every effort to put questions in such language. If the language is not known to the court, efforts to join an independent translator in the proceedings, especially at the stage of deposition, should be made.

It must be ensured that the number of times that a child victim or witness is required to recount the occurrence is minimised to the absolutely essential. For this purpose, right at the inception, a multidisciplinary team involving the investigating officer and the police; social services resource personnel as well as the prosecutor should be created and utilised in the investigation and prosecution of such cases involving a child either as a victim or a witness. This would create and inspire a feeling of confidence and trust in the child.

Jhakhu Case

The multi-disciplinary team of CBI that investigated the Jhakhu case²⁰⁴ (which led to Sakshi Vs UOI) had the following: The investigating Officer (a lady officer); The supervisory officer (a male); The counsellor from NGO (a lady) who facilitated the ice breaking of the victim with the investigators; The prosecutor (male); The forensic expert (male); The psycho social expert ( a Lady). The interview was done at a pace the child was comfortable, and was a child friendly ambience; There were no intimidatory questions; the child victim was facilitated to speak out and she spoke in the language of the child, which was recorded verbatim, which the Court eventually appreciated too.

It may not be possible to have such an expert team elsewhere’ but all those who have some expertise and need to be involved in the interviewing process, may be brought together and in a non-intimidating ambience so that the victim can be facilitated to speak.

The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of “Ascertaining voluntary nature of statement” unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref : Court On Its Own Motion v. State of N.C.T. Of Delhi)
No court shall detain a child in an institution meant for adults.(Ref : Court On Its Own Motion v. State of N.C.T. Of Delhi). This would apply to investigating agencies as well.

5. Cross-examination of a child with disability

Chander Singh v. State, Crl. A. 751/2014 decided by the Delhi High Court on 03.06.2016

In this case, a 12-year-old deaf girl had been sexually assaulted by the accused. Her statement had been recorded through gestures and drawings, which were interpreted with the assistance of a teacher working in a primary school for deaf children run by the Delhi Government. The defence argued that her testimony could not be read as evidence because she could not be cross-examined. The Delhi High Court held, “A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions.” It further held that, “When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for

²⁰⁴ Smt Sudesh Jhaku v. K.C.J, https://indiankanoon.org/doc/1525708/

that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.” The Delhi High Court concluded that the drawing of the victim in response to the cross-examination was sufficient compliance of the right to cross-examination of the accused and upheld the appellant’s conviction.

CHAPTER 2 – TRAFFICKING OF CHILDREN

2.1. The Context

Child trafficking – within countries, and across national borders – is closely interlinked with the demand for cheap labour in sectors and among employers where the working conditions and the treatment grossly violates the rights of the children. These forms range from bonded or forced labour, child domestic labour, commercial sexual exploitation and prostitution, drug couriering, and child soldiering to exploitative or slavery-like practices in the informal industrial sector.

According to Crime in India, 2016, 2992 cases of child trafficking (under Sections 370/370A, 366-B, 366-A of Indian Penal Code (IPC) and the Immoral Traffic Prevention Act, 1956 (ITPA) were reported in 2015, a drop from 3490 cases in 2015.²⁰⁵ 9034 children were reportedly victims of trafficking in 2016 constituting 58.74% of all trafficked victims²⁰⁶ 14183 children were rescued from trafficking of which boys constituted approximately 61%.²⁰⁷ Of the total, cases under the ITPA constituted only 1.66%, cases under Sections 370 and 370A comprised 6%, while 89% of the cases were lodged for procuration of minor girls under Section 366-A, IPC.²⁰⁸ The conviction rate for cases of child trafficking stood at 14.3% in 2015, while the pendency rate was 92%.²⁰⁹

These figures are however only a fraction of the children who are missing or go missing in India, and many cases go unreported.

Children are trafficked for various purposes – commercial sexual exploitation (prostitution, child pornography, child sex-tourism, online commercial sexual exploitation), labour, transplantation of human organs, child marriage, illicit adoptions, and begging.

206 Table 4A.2(i) and (ii), IPC and SLL Crimes Against Children-2016 in Crime in India, 2016; Table 6A.7, Cases Reported & Rate of Crime Relating to Child Trafficking During 2015, http:// ncrb.nic.in/StatPublications/CII/CII2015/FILES/Table%206A.7.pdf

206 Table 14.2 Victims Trafficked, Crime in India, 2016.

207 Table 14.3 Victim Rescued, Crime in India, 2016.

208 TABLE 6A.8 Incidence (I), Victims and Rate (R) of Total Crimes Relating to Child Trafficking During 2015, http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Table%206A.8.pdf

209 Table 6A.10, Disposal of Cases by Courts for Crimes Relating to Child Trafficking during 2015, http://ncrb.nic.in/StatPublications/CII/CII2015/FILES/Table%206A.10.pdf

This Chapter addresses only trafficking for commercial sexual exploitation of children. Trafficking for labour is explained in the chapter pertaining to child labour.

Linkage with Missing Children/ Persons

A Delhi High Court judgment²¹⁰ highlighted that of the 44,000 children that are reported missing annually, only 11,000 get traced. The NHRC Action Research (2002-04) had brought out evidence to show linkages – that many missing children, though reported as missing, had indeed been trafficked. Taking into consideration these issues, the Supreme Court directed in 2013²¹¹ that all missing cases be registered as FIR with a presumption that a missing child has been trafficked/ abducted. If the child is not traced in four months, the investigation should be handed over to the Anti Human Trafficking Unit (AHTU). The order further directed that the AHTU should report progress of such cases to the District Legal Services Authority (DLSA).

Protocol for the Police in case of a missing child²¹²

A missing child refers to a child whose whereabouts are not known to the parents, legal guardian or any other person/institution which is legally entrusted with the custody of the child. Irrespective of the circumstances in which the child has disappeared, the child should be considered a ‘missing child’ and a ‘child in need of care and protection’ until the location, safety and well-being of the child has been established.²¹³

Dos and Don’ts for the Police

When a compliant is received regarding a missing child, an FIR must be registered immediately.
Information regarding the missing child must be conveyed to a Child Welfare Police Officer.
The FIR must be forwarded to the SJPU for immediate action and tracing of the child.
The police must collect a recent photograph of the missing child and make copies for the DCPU, Missing Persons Squad, National Crime Records Bureau, Media, etc.
Fill the form on the designated portal for missing children
Fill the specific designed ‘Missing Persons Information Form’ and immediately send to Missing Persons Squad, District Missing Persons Unit, National Crime Record Bureau, State Crime Records Bureau, Central Bureau of Investigation, and other related institutions.

210 Bachpan Bachao Andolan vs. Union of India, Writ Petition (C) No. 51 of 2006, decided on 18.04.2011

211 Bachpan Bachao Andolan vs. Union of India,Writ Petition (Civil) no. 75 of 2012, decided on 10.05.2013

212 JJ Model Rules, 2016, Rule 92.

213 JJ Model Rules, 2016, Rule 92(1).

Send a copy of the FIR by post or email to the office of the nearest Legal Services Authority along with addresses and contact phone numbers of parents or guardian of the missing child or the Child Care Institution.
Prepare sufficient number of Hue and Cry notices containing photograph and physical description of the missing child to be sent for publication.
Give wide publicity by publishing or telecasting the photographs and the description of the missing child, as feasible in (a) leading newspapers (b) Television/electronic media (c) local cable television network and social media and thereafter submit for ratification by the CWC/JJB or the Children’s Court, as the case may be.
Give wide publicity in the surrounding area through the use of loud speakers and the distribution and affixture of Hue and Cry notice at prominent places. Social networking portals, Short Message Service alerts and slides in cinema halls can be used to reach out to the masses.
Distribute Hue and Cry notice at all the outlets of the city or town, that is, railway stations, bus stands, airports, regional passport offices and other prominent places.
Search areas and spots of interest such as movie theatres, shopping malls, parks, amusement parks, games parlours and areas where missing or run away children frequent should be identified and watched.
Scan the recordings of the Closed Circuit Television Cameras installed in the vicinity of the area from where the child was reported missing and on all possible routes and transit destination points like bus stands, railway stations, and other places.
Inquire from under construction sites, unused buildings, hospitals, and clinics, Childline services, and other local outreach workers, railway police, and other places.
Details of missing children should be sent to the District Crime Record Bureaus of the neighbouring States and Station House Officers (SHOs) of the bordering police stations including in-charge of all police posts in their jurisdiction.
Where a missing child cannot be traced within four months, the case investigation must be transferred to the Anti Human Trafficking Unit in the District.
In the event that the missing child is traced:
- the child must be produced before the relevant CWC/JJB/Children’s Court for appropriate directions.
- the police must send a report to the District Legal Services Authority which should provide counselling and other support services to the child and family
- the police must conduct an inquiry as to whether the child had been subject to any offence under the JJ Act, 2015 or any other law in force.

The Ministry of Women and Child Development has prepared a comprehensive Standard Operating Procedure in cases of Missing Children²¹⁴ which must be referred by police officers in such cases.

214 Standard Operating Procedure forCasesof Missing Children, Ministry for Women and Child Development, available at http://www.wcd.nic.in/sites/default/files/FINAL%20E- office%20SOP.pdf

2.2. Applicable Laws

Article 23(1) of the Indian Constitution prohibits traffic in human beings, beggar, and other similar forms of forced labour and states that contravention of this fundamental right against exploitation is a punishable offence. Additionally, the following legislations are relevant to child trafficking:

Indian Penal Code, 1860
Immoral Traffic Prevention Act, 1956
Protection of Children from Sexual Offences Act, 2012 (POCSO Act)
Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015)
The Bonded Labour System (Abolition) Act, 1976

Besides, legislations such as the Prohibition of Child Marriage Act, 2006; Child and Adolescent Labour (Prohibition & Regulation) Act, 1986; and Transplantation of Human Organs Act, 1994 will also apply to cases involving trafficking for marriage, labour, or sale of organs, respectively. The provisions of the Information Technology Act, 2000 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended in 2015 may also be relevant.

There are also the state legislations dealing with devdasi , which is another façade for trafficking girls/ women for prostitution – such as, The Bombay Devdasi (Protection) Act, 1934; The Madras Devdasi(Prevention of Dedication) Act, 1947; The Andhra Pradesh (Prohibition of Dedication) Act, 1988; The Karnataka Devdasi (Prohibition of Dedication) Act, 1982; and the Goa Children’s Act, 2003.

2.2.1. What constitutes trafficking? Note

Consent of the victim is immaterial as has been expressly stated under Section 370, IPC.²¹⁵
The concept of trafficking is broad under the IPC and narrow under ITPA. Trafficking of persons for physical or sexual exploitation, slavery, and forced removal of organs fall within the ambit of trafficking under Section 370, IPC. The ITPA recognises only trafficking for commercial sexual exploitation.
ITPA is a special legislation with several provisions for rescue, rehabilitation, deterrent action, and prevention, etc. Hence, both the IPC and the ITPA should be simultaneously utilized in all offences of sex trafficking of children.

215 IPC, Section 370(1), Explanation 2.

Relevant Provision	Activities	Means/Methods	Purpose/Intention
Section 370, IPC (amended in 2013) – Trafficking of persons	Recruitment, transportation, harbouring, transferring or receiving person/ persons	Threats, force or any other form of coercion, abduction, practicing fraud or deception, abuse of power, inducement including giving or receiving payments or benefits to achieve consent of person having control over the person	Exploitation – including physical exploitation, any form of sexual exploitation, slavery or practices similar to slavery, servitude, or forced removal of organs.
Section 16, Explanation III, POCSO Act, 2012 – Abetment of an offence Note: The term “trafficking” is not used in the POCSO Act.	Employment, harbouring, receiving or transportation of a child	Threat, use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving of payments of benefits to achieve the consent of a person having control over another person	Commission of sexual offences under POCSO Act
Section 5A, ITPA – Procuring, inducing or taking person for the sake of prostitution	Recruitment, transportation, harbouring, transferring or receiving a person/persons	This provision of the ITPA does not explicitly provide any means; however, activities under this Section could be deemed to include the following: Threats, force, coercion, abduction, fraud or deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of person having control over another person	Commercial sexual exploitation
Section 2(z), Goa Children’s Act, 2003 – “child trafficking”	Procurement, recruitment, transportation, transfer,harbouring or receipt of children	Threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve the consent of a person having control overanother person	Monetary gain or otherwise

2.1.1. The Victim of Trafficking

Any person who is affected by, or subjected to, any act in the trafficking process is a victim. This includes the following: -

Any trafficked person, irrespective of their age or nationality or the time of trafficking or the place of trafficking or the purpose for which the person has been trafficked.
Persons above the age of 18 who through force or threat of force, coercion, abuse of power etc. were/are required to perform sexual acts without their consent, by any person(s).
‘Children’ who have not completed the age of 16 years and ‘minors’ who have completed the age of 16 years, but have not complete the age of 18 years, who are found in places of commercial sexual exploitation (CSE) (under Section 2(aa) and (cb) ITPA).
Any person below 18 years who is found vulnerable and is likely to be trafficked, as this person is a ‘child in need of care and protection’ under section 2 (14) of the JJ Act, 2015 and, therefore, a person who should be rescued.
Anybody who has been recruited, harboured, transported, detained, obtained, or procured for CSE.
Any person who has been detained in a brothel, with or without consent (Section 6 (1) (a) ITPA).

2.1.2. The Traffickers / Perpetrators in Trafficking for Commercial Sexual Exploitation

Trafficking is an organized crime. The list of offenders in a trafficking crime include one or more of the following²¹⁶:

Recruiter
Agents of recruiter
Seller of trafficked person
Buyer of trafficked person
Transporter
Conspirator
Abettor
Financier

216 P.M. Nair, "Handbook for Law Enforcement Agencies on Trafficking for Sexual Exploitation", UNODC, 2007.

Parent(s)/Guardian(s) who knowingly sell/cause to sell/traffic their children/ ward
‘Customer’/clientele
Pimp
Brothel madam
Brothel managers
Any other person who is knowingly involved in any act of commission and/ or wilful omission in the process of human trafficking.

The list is only illustrative and not exhaustive; and the onus is on the Investigating Officer (IO) to fathom the entire process of trafficking and identify who else is involved.

2.1.3. The process of trafficking

Human trafficking is an organized crime. It is a crime with several components and therefore has been referred to as a ‘basket of crimes’.²¹⁷ From the victim’s perspective, a typical case of human trafficking for sexual exploitation may have the following components: -

displaced from her community, which is tantamount to kidnapping/abduction;
procured illegally;
sold by somebody;
bought by somebody
imported from a foreign country;
wrongfully restrained;
wrongfully confined;
physically tortured/injured;
subjected to criminal force;
mentally tortured/harassed/assaulted;
criminally intimidated;
outraged of her modesty;
raped/gang raped/repeatedly raped; filmed while performing sexual acts;
subjected to perverse sexual exploitation (unnatural offences);
defamed;
enslaved, bonded;

217 Nair PM, Human Trafficking: Dimension, Challenges & Responses, Konark Publishers, 2010.

subjected to sexual slavery;
victim of criminal conspiracy.

This list is only illustrative and not exhaustive. It must be noted that not all elements may be present, but the act may still amount to trafficking. For instance, in case of children belonging to devadasi families, the child may not be displaced, yet other elements may be present.

2.1.4. Indicators of Human Trafficking

The crime can be gauged only with reference to the context, and therefore alertness in observation is the key aspect in detection. The indicators will vary from context to context. However, some of the generic indicators are as follows: -

Lack of freedom of the victim;
Clientele ‘calling themselves as customers’ visit more often and surreptitiously;
Association of drugs, alcohol, smoke etc.;
Purchase and usage of contraceptives;
Medical issues of the victims especially sex related and reproductive and sexual health;
Visible injuries on the trafficked victim like cigarette burns etc.;
Traumatized and distraught victims;
An ambience of make-believe world where the victims are made to show up or made to indulge in exhibitionism;
Nexus among the officials or other duty bearers, which generally gets discussed;
Huge asset creation by the traffickers and conspirators. This list is only illustrative and not exhaustive.

2.1.5. Trafficking vs. other crimes

Sex trafficking and labour trafficking can be intertwined, for example, a woman trafficked for domestic labour can be a victim of sex slavery also. Trafficking differs from ‘smuggling of migrants’ as in the case of latter there is an element of consent from the victim. However, the investigating officers should be circumspect in ascertaining consent because if the consent has been obtained by lure, deception, coercion or force, it is not an informed consent and therefore, even such persons are also victims of trafficking. The trafficking process essentially has a chain starting from source, transit and then to destination. It is a continuing crime, and may entail moving from one destination to another or the exploitation by several persons continuing over a period of time.

The cause of trafficking can be classified into two: -

vulnerability factors, sometimes called push factors;
demand factors, usually called pull factors.

The NHRC research²¹⁸ had brought out that the vulnerability factors are essentially ignorance of rights, illiteracy, lack of care of children in family and community, gender discrimination, discrimination on the basis of caste, community, disability, sexual orientation etc., economic disparity, lack of law enforcement, lack of priority among respondents and nexus, lack of political will and/or nexus, etc. Recent empirical research revealed that economic conditions, lack of family support, and force were key causes, among others that pushed women into prostitution.²¹⁹ The demand factors, which constitute the major causes of human trafficking is essentially violence of human beings against others. This violence can be manifested into different acts that constitute brutality. Sex slavery is an aggravated form of violence. The abuser/exploiter indulges in several types of violence on the victim causing different types and intensity of harm including physical, emotional, mental, financial, health hazards, etc.

The word ‘customer’ does not appear in the ITPA. With respect to sexual exploitation of children, the ‘customers/ clients’ can be charged directly under POCSO also.

Trafficking can be within the country or trans-border also. It can even take place under one roof. It is essentially a crime, which makes huge profits with lower risks.

2.1.6. Definition of “child” in laws relevant to trafficking

Section 2(aa), ITPA	“child” means a person who has not completed 16 years
Section 2(cb), ITPA	“minor” means a person who has completed 16 years but not 18 years.
Section 2(d), Goa Children’s Act, 2003	“child” means any person who has not completed 18 years of age; in an offence of rape, “child” means any person who has not completed 16 years of age.
Section 2(d), POCSO Act	“child” means any person below 18 years
Section 2(12), JJ Act, 2015	“child” means a person who has not completed 18 years.

218 Nair, P.M & Sen. S, Trafficking in Women and Children in India, Orient Longman, 2005

219 Wilson, B & Nochajski, T.H., "On the Continuum of Exit: Understanding the Stages of Change Among Women in Commercial Sexual Exploitation", Gender Issues, September 2017, https:// www.researchgate.net/publication/319720514_On_the_Continuum_of_Exit_Understanding_ the_Stages_of_Change_Among_Women_in_Commercial_Sexual_Exploitation

The term “child” or “minor” is not defined under the IPC and does not appear in the Bonded Labour System (Abolition) Act, 1976.

2.1.7. Trafficked child victim is a “child in need of care and protection”

Any child found vulnerable or likely to be inducted into trafficking is a child in need of care and protection (CINCP) under Section 2(14)(ix) of the JJ Act, 2015. Such a child can be produced before the Child Welfare Committee (CWC) by any police officer or Special Juvenile Police Unit (SJPU) or officer of the District Child Protection Unit (DCPU), labour inspector, Childline, public servant, probation officer, Child Welfare Officer, social worker, public spirited citizen, nurse, doctor, or management of a hospital or nursing home, or by the child herself/ himself.²²⁰ Rehabilitation and restoration/repatriation of a trafficked child will have to be in accordance with the JJ Act, 2015.

2.1.8. Offences relevant to trafficking of children

Under the IPC, the following provisions would apply to a case of trafficking for commercial sexual exploitation of a person below 18 years:

Procuration of minor girl under 18 years – Section 366-A
Importation of girl under 21 years from foreign country– Section 366-B
Trafficking of minor– Section 370 (4)
Trafficking of more than one minor – Section 370 (5)
Punishment for repeat trafficker of minors – Section 370 (6)
Exploitation of a trafficked minor – Section 370-A(1)
Habitual dealing in slaves – Section 371
Selling minor girl for purposes of prostitution – Section 372
Buying minor girl for purposes of prostitution – Section 373 Under ITPA, the following provisions are relevant:
Punishment for keeping a brothel or allowing premises to be used as a brothel

– Section 3

Punishment for living on the earnings of prostitution of a child – Section 4
Procuring, inducing or taking child for the sake of prostitution – Section 5
Trafficking/abetment of trafficking – Section 5B
Person visiting brothel for sexual exploitation of trafficked victim – Section 5C
Detaining a person in premises where prostitution is carried on – Section 6
Prostitution in or the vicinity of public place in respect of a child – Section 7

220 JJ Act, 2015, Section 31(1).

While the POCSO Act, 2012 does not expressly use the term “trafficking”, according to Explanation III to Section 16, employing, harbouring, receiving or transporting 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 giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any sexual offence under the Act would constitute aiding the offence and amount to abetment.

The following offences will be relevant to trafficking for commercial sexual exploitation under the JJ Act, 2015:

Penalty for non-reporting a child found separated from guardian – Section 33
Punishment for cruelty to child – Section 75. Under this provision, assault, abandonment, abuse, exposure or wilful neglect of a child or causing or procuring a child through such acts in a manner likely to cause the child unnecessary mental or physical suffering is an offence.
Cruelty by person employed or managing an organization responsible for care and protection of child – Section 75, second proviso
Disability caused due to cruelty – Section 75, third proviso
Exploitation of child employee – Section 79
Sale and procurement of children for any purpose – Section 81

Under the Goa Children’s Act, 2003, exploitation of child for commercial sexual exploitation is an offence under Section 9(4).

2.1.1. Presumptions in Law

Under the ITPA, the ‘doctrine of presumption’ is a good weapon for preventing and combating trafficking by virtue of the fact that the specific provisions of presumption casts onus of proof on the accused. The relevant provisions are²²¹:

Section 3 provides punishment for keeping a brothel or allowing premises to be used as a brothel. It shall be presumed, u/s 3(2A), that the concerned person (owner, tenant, lessee, occupier, in-charge of any such premises) has knowledge of the same if:

a report is published in a newspaper with local circulation that the premises concerned are being used for prostitution, as revealed during a search;
a copy of the search list is made available to the person concerned.

221 P.M. Nair, "Handbook for Law Enforcement Agencies on Trafficking for Sexual Exploitation", UNODC, 2007.

If any person, over 18 years of age, is proved to have exercised control, direction or influence over the movements of another person who is below 18 years of age, in such a manner as to show that he/she is aiding, abetting or compelling the other person to for prostitution, it shall be presumed that he/ she is living on the earnings of prostitution of another person and is liable under Section 4 of ITPA.
If a person is found with a child in a brothel, it will be presumed unless the contrary is proven that the person has detained the child in a premise where prostitution is carried on.²²²
If medical examination of a child or minor found in a brothel reveals sexual abuse, it will be presumed unless the contrary is proven that the child or minor had been detained in the brothel for the purpose of prostitution or was sexually exploited for commercial purposes.²²³
According to Section 6 (3) of ITPA, a person shall be presumed to have detained a woman or a girl in a brothel or upon any premises for CSE, if the person withholds from her any of her property (like jewellery, dress, money etc.), with intent to compel/induce her to remain there. He is also liable if he threatens her with action if she takes away any such property lent/supplied to her by, or on the direction of, such a person.

2.1.2. Relevant authorities

Act	Investigation	Departments	Adjudication	Care & Protection, Rehabilitation
IPC	Police and special units like AHTU	Home	Sessions Court	CWC

Description Page

Dr. A. P. Maheshwari, IPS

Foreword

Dr. P.M. Nair, Dr. Geeta Sekhon, Ms. Swagata Raha, Ms. Shruthi Ramakrishnan, and Ms. Sumati Thusoo.

Acknowledgments

Section I – INTRODUCTION AND COMMON ASPECTS

1. THE CONTEXT

1. CONSTITUTIONAL, STATUTORY, AND INTERNATIONAL OBLIGATIONS TO PROTECT CHILDREN

A. Constitutional Framework

B. Statutory Framework

A. International Obligations

B. Domestic Authorities and Structures Relevant to Children

Key Statutory Bodies for the protection of child rights

1. CHILD VICTIMS AND THE CRIMINAL JUSTICE SYSTEM

2. WHO IS THE HANDBOOK MEANT FOR?

3. HOW TO USE THE HANDBOOK?

4. USE OF TERMINOLOGY

Section 1.1 – Child-friendly process of investigation and care: General norms

Special Juvenile Police Unit (SJPU)

1.1.1. Facilitation of Care & Protection

Who is a child in need of care and protection?

Procedure

1.1.1. Child-Friendly Investigation

Significant Court Ruling

1.1.1. Territorial Jurisdiction

1.1.2. Documentation

1.1.3. Forensic

Section 1. 2 – How to Assess Age of a Child Victim?

Process for Age-Determination under Section 94, Juvenile Justice Act, 2015

Dos and Don’ts for the police

Significant Court Rulings

Criminal Appeal (MD) No. 98 of 201545

Section 1.3 – Communication with a Child

1.3.1. Suggested Dos and Don’ts

Dos and Don’ts Atmosphere

Scheduling Interviews

Interview Guidelines49

Language and Communication

Questioning Children

Making the Child Comfortable

Additional Points for police officers:

1.3.1. How to Ascertain if a Child Witness Understands the Difference between Truth and Lie

Section 1.4 – Behaviour of a Child Victim of a Sexual Offence

Section 1. 5 – Children with different gender identities and sexualities

Sex and Gender

Sexual Orientation

Impact of gender and sexuality issues on children

Section 1.6 – General Norms of a Child Friendly Trial

Section 1.7 – Convergence and Networking by Police with Multiple Stakeholders

1.7.1. Role of the Police/SJPU vis-à-vis other authorities

1.7.3 Specific Duties of Governments and Actors within Criminal Justice System

SECTION II –THE SPECIFICS:DIFFERENT CONTEXTS

CHAPTER 1 – Sexual Offences against Children

1.1. Overview of Legal Framework

1.1.1. Applicable Laws

1.1.2. Offences under the POCSO Act

Expanded Notion of “Penetration”

Aggravating Factors

Sexual Intent Necessary in Touch and Non-Touch Based Sexual Offences

Using a child for pornography

Presumptions under the POCSO Act

1.1.1. Sexual Offences under the Indian Penal Code (IPC)

1.1.1. Sexual Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act)

1.1.2. Sexual Offences under the Rights of Persons with Disabilities Act, 2016 (RPD Act)

1.1.3. Sexual Offences under the Information Technology Act, 2000 (IT Act)

1.1.4. Sexual Offences under the Indecent Representation of Women Act, 1986

1.1.5. Sexual Offences under the Goa Children’s Act, 2003

1.1. Processes

1.1. Procedure for medical examination and emergency medical care

Dos

Don’ts

1.2. Facilitation of Recording of Statement under Section 164, Cr.P.C., by the Magistrate

1.1. Procedures of the Special Court

Jurisdiction of Special Courts

Cognizance and Disposal

Questioning Children

Child-friendly atmosphere

Compensation

Support Persons

Legal Counsel on Behalf of Victim

Criminal Appeal (MD) No. 98 of 2015⁴⁵

Interview Guidelines⁴⁹