The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special
law that came into force w.e.f. 14th November, 2012. It is a comprehensive law
to provide for the protection of children from the offences of sexual assault,
sexual harassment and pornography, while safeguarding the interests of the child
at every stage of the judicial process by incorporating child-friendly
mechanisms for reporting, recording of evidence, investigation and speedy trial
of offences through designated Special Courts.
Besides, India is a signatory to the UN Convention on the Rights of the Child
since 1992. The parties to the Convention are required to take measures to
prevent children from being coerced into any unlawful sexual activity.
The said Act defines a child as any person below eighteen years of age. People
who traffick children for sexual purposes are also punishable under the
provisions relating to abetment in the said Act. Thus, Instigating, abetting and
attempting an offence of sexual abuse, sexual assault, sexual harassment and
pornography are also punishable.
According to the POCSO Act, everyone is obliged to report the sexual abuse of a
child. Failure to report or record is a punishable offence. However, a child
cannot be punished for failing to report. It prescribes severe penalties for
offences. The maximum penalty is life imprisonment and a fine.
Various punishable offences under the POCSO Act, 2012
Sexual Offences Against Children
Using Child For Pornographic Purposes And Punishment Therefore
- Penetrative Sexual Assault and Punishment Therefore
Section 3. Penetrative sexual assault.
Section 4. Punishment for penetrative sexual assault.
- Aggravated Penetrative Sexual Assault and Punishment Therefor
Section 5. Aggravated penetrative sexual assault.
Section 6. Punishment for aggravated penetrative sexual assault.
- Sexual Assault and Punishment Therefor
Section 7. Sexual assault.
Section 8. Punishment for sexual assault.
- Aggravated Sexual Assault and Punishment Therefor
Section 9. Aggravated sexual assault.
Section 10. Punishment for aggravated sexual assault.
- Sexual Harassment and Punishment Therefor
Section 11. Sexual harassment.
Section 12. Punishment for sexual harassment.
Section 13. Use of child for pornographic purposes.
Section 14. Punishment for using child for pornographic purposes.
Section 15. Punishment for storage of pornographic material involving child.
Significance Of Pocso Act, 2012
The Indian Penal Code does not recognize that sexual assault can be committed on
boys. So, there was a need to introduce such a law. The POCSO Act was enacted in
2012 and is gender neutral it recognizes that boys can be victims of sexual
violence as well.
The Act also increased the scope of reporting sexual crimes against children. It
expanded the definition of sexual assault to include non-penetrative sexual
assault as well as aggravated penetrative sexual assault (sections 3 to 10), and
also included punishment for persons in positions of trust of authority like
public servants, staff of educational institutions, police etc.
Notably, this law recognizes sexual harassment of a child which involves touch,
and also that which doesn't (sections 11 and 12), such as stalking, making a
child expose themselves or exposing themselves to a child, and so on.
The POCSO Act also specifically lays down stringent punishment for exposing
children to, or using them to create child sexual abuse material, i.e., for
Pornographic purposes under sections 13, 14, and 15.
The POCSO Amendment Bill, 2019
The Protection of Children from Sexual Offences (Amendment) Bill, 2019 was
introduced in Rajya Sabha by the Minister of Women and Child Development, Ms.
Smriti Zubin Irani on July 18, 2019. The Bill amends the Protection of Children
from Sexual Offences Act, 2012.
Amendment to POCSO Rule, 2020
- Penetrative sexual assault:
The Bill increases the minimum punishment from seven years to ten years. It
further adds that if a person commits penetrative sexual assault on a child
below the age of 16 years, he will be punishable with imprisonment between 20
years to life, with a fine.
- Aggravated penetrative sexual assault:
The Bill adds two more grounds to the definition of aggravated penetrative
- assault resulting in death of child, and
- assault committed during a natural calamity, or in any similar
situations of violence.
Currently, the punishment for aggravated penetrative sexual assault is
imprisonment between 10 years
to life, and a fine. The Bill increases the minimum punishment from ten
years to 20 years, and the
maximum punishment to death penalty.
- Aggravated sexual assault:
The Bill adds two more offences to the definition of aggravated sexual assault.
- assault committed during a natural calamity, and
- administrating or help in administering any hormone or any chemical
substance, to a child for the purpose of attaining early sexual maturity.
- Pornographic purposes:
The Bill defines child pornography as any visual depiction of sexually explicit
conduct involving a child including photograph, video, digital or computer
generated image indistinguishable from an actual child.
- Storage of pornographic material:
The Bill amends this to provide that the punishment can be imprisonment between
three to five years, or a fine, or both. In addition, the Bill adds two other
offences for storage of pornographic material involving children. These include:
- failing to destroy, or delete, or report pornographic material involving
a child, and
- transmitting, displaying, distributing such material except for the
purpose of reporting it.
After the amendments to the POSCO Act in August, 2019 the Supreme Court in
September directed the Centre to follow the compensation structure specified by
the National Legal Services Authority. In November, Supreme Court registrar
Surinder S Rathi's report on POCSO cases found that only 1% of minor sexual
assault survivors get compensation and that 96% are not provided support by the
persons to assist them during legal processes. Officials began drafting the
rules in October. The provision comes on the back of recent cases of child
sexual abuse in child care institutions in Muzaffarpur in Bihar and Deoria in
The Ministry Of Women And Child Development of central government on 9th March
2020 notified Protection of Children from Sexual Offences Rules, 2020 replacing
the earlier 2012 Rules.
Key features of the Rules:
Interpretation Of Statue Via Case Laws
- Mandatory police verification of staff in schools and care homes,
procedures to report sexual abuse material (pornography), imparting
age-appropriate child rights education among others.
- Compensation to be paid within 30 days as per new POCSO Rules. The State
Government shall pay the compensation ordered by the Special Court within 30
days of receipt of such order.
As per the Rules, where an officer of the SJPU, or the local police receives
information under section 19 of the Act that an offence under the has been
committed, and is satisfied that the child against whom an offence has been
committed is in need of urgent medical care and protection, such officer, or
as the case may be, the local police shall, within 24 hours of receiving
such information, arrange to take such child to the nearest hospital or
medical care Facility Centre for emergency medical care.
- For crackdown on child pornography, the rules state that any person
who has received any pornographic material involving a child or any
information regarding such pornographic material being stored, possessed,
distributed, circulated, transmitted, facilitated, propagated or displayed,
or is likely to be distributed, facilitated or transmitted in any manner
shall report the contents to the special juvenile police unit (SJPU) or police, or the cybercrime
- The report shall include the details of the device in which such
pornographic content was noticed and the suspected device from which such
content was received including the platform on which the content was
- Under the rules, the state governments have been asked to formulate a
child protection policy based on the principle of "zero-tolerance" to
violence against children, which shall be adopted by all institutions, organisations,
or any other agency working with, or coming in contact with children
- The centre and every state government shall provide periodic training
including orientation programmes, sensitisation workshops and refresher courses
to all persons, whether regular or contractual, coming in contact with the
children, to sensitise them about child safety & protection, and educate them
regarding their responsibility.
- The Centre and state governments have been asked to prepare
age-appropriate educational material and curriculum for children, informing
them about various aspects of personal safety, including measures to protect
their physical and virtual identity; and to safeguard their emotional and
mental wellbeing, prevention and protection from sexual offences and
reporting mechanisms, including Childline helpline services through toll free number - 1098.
- Under the new rules, any institution housing children or coming in
regular contact with children, including schools, creches, sports academies or any other
facility for children must ensure a police verification and background check on
periodic basis of every staff.
- Satish Regde vs. State of Maharashtra 
Facts in brief:
- The Nagpur Bench of the Bombay High Court recently held that in the absence
of skin-to-skin contact,' groping a child's breast would not amount to
the serious offense of sexual assault' under section 7 of Protection of
Children from Sexual Offences (POCSO) Act but shall be considered as molestation'
under the Indian Penal Code (IPC).
- As per this observation, the Nagpur Bench, which consisted of Justice Pushpa
Ganediwala, modified the order of the Sessions Court, which held the accused, a
39-year-old man, guilty of sexual assault for groping a 12-year-old (at the time
the offense was committed, i.e., in 2016) girl and removing her salwar. Ragde
had, in the pretext of giving the child guava, taken her to his house, where he
proceeded to grope and attempted to disrobe her.
- The accused had been charged with sections 342 (wrongful confinement),
354 (outraging the modesty of a woman), and 363 (kidnapping) of the IPC, and section
8 of the POCSO Act. The Sessions Court punished the accused according to section
8 of the POCSO Act, which attracts minimum imprisonment for three years.
- While modifying the order, the Nagpur Bench held the man guilty under
sections 342 and 354 of the IPC and acquitted him under section 8 of the POCSO
Act. The Court stated that considering the stringent nature of the punishment
provided under POCSO for the offense of sexual assault, stricter proof, and
serious allegations are required.
- Since the act of pressing the child's breast lacks any specific details
regarding whether her top was removed or whether the man inserted his hand
inside the top to grope her, it would not come under the ambit of sexual
assault as defined under POCSO.
Section 7. Sexual assault under POCSO Act
Whoever with sexual intent touches the vagina, penis, anus, or breast of the
child or makes the child touch the vagina, penis, anus, or breast of such person
or any other person, or does any other act with sexual intent which involves
physical contact without penetration is said to commit sexual assault.
Question for Consideration
- Whether the pressing of breast' and attempt to remove salwar' would
fall within the definition of sexual assault' as defined under Section 7
and punishable under Section 8 of the POCSO Act?
Why is the Judgment Problematic?
- The sole justification given for the judgment is the lack of stricter
proof' and serious allegations.' The Court has applied the principle of
proportionality, which entails the imposition of a punishment proportional
to the gravity of the offense committed. This justification, thus, deems the
act of pressing the breast of a 12-year-old child not grave enough to call
it sexual assault.
- The POCSO Act casts a more significant burden on the accused than on the
prosecution, making it protective and beneficial legislation. It is expected to
be interpreted in such a manner that protects the interest of children. Model
Guidelines issued by the Ministry of Women and Child Development under section
39 of the Act state that the Act recognizes almost every known form of sexual
abuse against children as punishable.
- Therefore, it does not matter if the groping had been done with or
without the clothes. Such an interpretation contradicts the purpose of the
- The definition of sexual assault under the Act is quite vivid and
unambiguous. The essentials of section 7 have unquestionably been satisfied
in the present case.
Supreme Court's stay order on the Judgment
- Unsurprisingly, the judgment has been challenged in the Supreme Court by
various bodies. The Youth Bar Association of India has filed an appeal which
states that the Single Judge's observations are unwarranted' and that the
reasoning provided, i.e., there was no physical contact since there was no
skin-to-skin contact, is dastardly.
- The National Commission for Protection of Child Rights (NCPCR) has approached
Maharashtra's Government to file an urgent appeal against the judgment.
- As a result, the Supreme Court has stayed the acquittal of the accused
under section 8 of the POCSO Act. A Bench head passed the order by the Chief Justice
of India on the Attorney General's recommendation, KK Venugopal, who stated
that the judgment likely sets a dangerous precedent.
- The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ expressed
that the act of pressing of the breast of the child aged 12 years, in the
absence of any specific detail as to whether the top was removed or whether he
inserted his hand inside top and pressed her breast, would not fall in the
definition of sexual assault'.
- That, a literal interpretation has been allocated to the term physical
contact' with regard to the first two parts of the provisions by minimizing
its scope to skin-to-skin contact,' thereby reducing the ambit of sexual
- Libnus v. State of Maharashtra 
Facts in brief:
- Informant i.e. the mother of the prosecutrix had gone to her duty and on
returning back home she saw the presence of appellant/accused in her house
molesting her minor daughter who was aged about 5 years.
- She further stated that when she left her house, her two daughters, aged
around 3 and 5 years were alone in the house and her husband was out of
station. She also stated that the moment she saw a person in her house
holding hands of her elder daughter, she shouted, as a result of which her neighbours gathered
- Thereafter, the accused ran away. The informant testified that her
daughter informed her that the Accused removed his penis from the pants and
asked her to come to the bed for sleeping. The informant also noticed that
the zip of the pant of the Accused was open.
- A case was registered against the Accused for the offences punishable
u/s 354-A (1) (i) and 448 of the Indian Penal Code, 1860 and Sections 8, 10
and 12 r/w Section 9(m) and 1
- 1(i) of the Protection of Children from Sexual Offences
- The Trial Court found the Accused guilty and convicted him accordingly.
The Nagpur bench altered the conviction of the appellant who was accused of sexually
assaulting a minor child by partly quashing his conviction for the offence of
sexual assault and aggravated sexual assault punishable under Sections 8 and 10
of POCSO Act, respectively.
- The key issue before the court was whether holding hand of child and
taking penis out in front of her would fall within the definition of sexual
assault u/s 7 of the POCSO Act?
Analysis and Decision
- Bench noted that the appellant/accused was convicted by the trial court
for the commission of offence of aggravated sexual assault', punishable
under Section 10 of POCSO Act.
However, to decide whether the alleged act of
appellant/accused would fit into the definition of aggravated sexual assault',
Court looked into the definition of sexual assault', according to which the
offence involved the following ingredients:
- Act must have been committed with sexual intention.
- Act involves touching the vagina, penis, anus, or breast of the child,
makes the child touch the vagina, penis, anus or breast of such person or any
other person, or
does any other act with sexual intent which involves physical contact without
- Further, the Court added that the acts of holding the hands of the prosecutrix', or opened zip of the pant' as had been allegedly witnessed
by PW-1, which in the opinion of this Court did not fit in the definition of sexual
- Considering the nature of the offence and the sentence prescribed, Court
opined that the aforesaid acts were not sufficient for fixing the criminal
liability on the appellant/accused of the alleged offence of aggravated
- Bench expressed that the prosecution could establish that the
appellant/accused entered into the house of the prosecutrix with the intention
to outrage her modesty or sexual harassment as defined under Section 11 of the
- Hence, the conviction of the appellant/accused of the offence punishable
under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act
was maintained. The criminal appeal was partly allowed and the conviction of the
appellant/accused of the offence punishable under Sections 8 and 10 of the POCSO
Act, was quashed and set aside.
- The Court in this case applied the principle of ejusdem generis to interpret
the other acts' under section 7 of the POCSO Act and held that holding
hands' is an act of different nature than those mentioned in section 7, hence
it is not included under the definition of sexual assault, but it has not given
any reason for its finding.
The principal objectives of the Protection of Children from Sexual Offences Act,
2012 are to protect' children from offences of sexual assault, sexual
harassment, pornography, to secure the best interests of the child, and to
prevent the inducement or coercion of a child to engage in any unlawful sexual
The two judgments discussed above, unfortunately, do not uphold the objectives
of the POCSO Act. Holding a child's hand with the zip open, removing of penis
from the pants, asking the child to come to the bed for sleeping, and pressing
of breasts not by skin to skin, etc., are all ingredients of sexual assault but
the Bombay High Court by not holding them to fall in the category of sexual
assault has paved the way for the perpetrators of crime to use the two judgments
as a shield for their crimes. The Supreme Court has already stepped in to
prevent the abuse of law by staying one of the judgments.
The Kerala High Court had also advised the courts to treat sexual assault
against children strictly and adopt an interpretation that is in consonance with
the objective of the law, that is, to protect children against sexual abuse and
Further, awarding a less stringent punishment by converting a conviction under
POCSO to a case of molestation under section 354 of the Indian Penal Code is an
erroneous interpretation too. It defeats the purpose of enacting the POCSO law.
The Nagpur Bench of the Bombay High Court has failed to appreciate that the
POCSO Act is a special law enacted to deal with cases of sexual assault against
- National Commission for Protection of Child Rights, available at:
- The Protection of Children from Sexual Offences Bill, 2011, available
- The Protection of Children from Sexual Offences (Amendment) Bill, 2019,
available at: https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-amendment-bill-2019-979
- New rules under amended POCSO Act, available at: https://www.hindustantimes.com/india-news/new-rules-under-amended-pocso-act-survivors-may-get-quick-compensation/story-aTEYiO22kJtCHJmyyYyDRJ.html
- Zero tolerance on child porn: Government notifies new POCSO rules,
available at: https://timesofindia.indiatimes.com/india/zero-tolerance-on-child-porn-govt-notifies-new-pocso-rules/articleshow/74602987.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
- New POCSO Rules Comes Into Force, available at: https://www.livelaw.in/news-updates/pocso-rules-2020-comes-into-force-153763
- provision for compensation to the victim child under new rules,
- 2021 SCC OnLine Bom 72
- Attorney General for India v. Satish, 2021 SCC OnLine SC 42
- 2021 SCC OnLine Bom 66