Reporting a POCSO Offence

Sub-section (3). Where the report is given by a child, it shall be recorded in simple language so that the child understands the contents being recorded.

Sub-section (4). Where the contents are recorded in a language not understood by the child, or wherever it is deemed necessary, a translator or interpreter of the prescribed qualifications, experience and fees shall be provided to the child.

Sub-section (5), care and protection. Where the Special Juvenile Police Unit or local police is satisfied that the child against whom the offence has been committed is in need of care and protection, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection, including admitting the child into a shelter home or to the nearest hospital, within twenty-four hours of the report.

Sub-section (6), reporting upward. The Special Juvenile Police Unit or local police shall, without unnecessary delay but within twenty-four hours, report the matter to the Child Welfare Committee and the Special Court, or where no Special Court has been designated, to the Court of Session, including the need of the child for care and protection and the steps taken.

Sub-section (7), protection of the informant. No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).

Sub-section (6) requires the report to go to both the Child Welfare Committee and the Special Court. That is the point at which the two Acts in this module meet: the Committee then deals with the child as a child in need of care and protection under section 30(xiii) of the Juvenile Justice Act.

Section 20: media, studio and photographic facilities

Any personnel of the media, or hotel, or lodge, or hospital, or club, or studio, or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of a child, including pornographic, sexually related, or making obscene representation of a child or children, through the use of any medium, provide such information to the Special Juvenile Police Unit or to the local police.

Section 21: failure to report or record

Sub-section (1). Any person who fails to report the commission of an offence under section 19(1) or section 20, or who fails to record such offence under section 19(2), shall be punished with imprisonment of either description which may extend to six months, or with fine, or with both.

Sub-section (2), the person in charge. Any person being in charge of any company or an institution, by whatever name called, who fails to report the commission of an offence under section 19(1) in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year, and with fine.

Sub-section (3). The provisions of sub-section (1) shall not apply to a child under this Act.

Sub-section (2) doubles the maximum and makes the fine compulsory, and its target is the head of a school, hospital or company who hears of what a subordinate has done and does nothing. Sub-section (3) exempts the child, because the duty in section 19(1) applies to any person, including the child, and it would be absurd to punish the victim for silence.

Section 22: false complaints

Sub-section (1). Any person who makes a false complaint or provides false information against any person in respect of an offence committed under sections 3, 5, 7 and 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment which may extend to six months, or with fine, or with both.

Sub-section (2). Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child.

Sub-section (3). Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimising such child in any of the offences under this Act, shall be punished with imprisonment which may extend to one year, or with fine, or with both.

Note the word solely in sub-section (1). The section punishes a complaint made solely with one of the four named intentions; a complaint that turns out to be unfounded is not for that reason an offence.

Section 23: procedure for media

Sub-section (1). No person shall make any report or present comments on any child, from any form of media or studio or photographic facilities, without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.

Sub-section (2). No reports in any media shall disclose the identity of a child, including his name, address, photograph, family details, school, neighbourhood, or any other particulars which may lead to disclosure of the identity of the child.

Proviso. For reasons to be recorded in writing, the Special Court competent to try the case may permit such disclosure, if in its opinion the disclosure is in the interest of the child.

Sub-section (3). The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.

Sub-section (4). Contravention of sub-section (1) or (2) is punishable with imprisonment of either description for a period which shall not be less than six months but which may extend to one year, or with fine, or with both.

Compare section 23(4) with section 74(3) of the Juvenile Justice Act, which punishes the same kind of disclosure with six months or two lakh rupees or both. POCSO's provision has a minimum of six months; the Juvenile Justice Act's has a much larger fine.

A worked example

A schoolteacher notices signs of abuse in a pupil and suspects a colleague.

Must she do anything? Yes. Section 19(1) obliges any person who has apprehension that an offence is likely to be committed, or knowledge that one has been committed, to inform the Special Juvenile Police Unit or the local police. Apprehension of a future offence is enough.

She is afraid of being sued. Section 19(7): no liability, civil or criminal, for information given in good faith.

She says nothing. She is punishable under section 21(1): up to six months, or fine, or both.

The principal, told of it, also says nothing. He is in charge of an institution and failed to report an offence by a subordinate under his control: up to one year and fine, section 21(2).

The child himself said nothing. No offence. Section 21(3) excludes a child from sub-section (1).

The report is made. It must be given an entry number and recorded in writing, read over to the informant, and entered in a book kept by the Police Unit, section 19(2); recorded in simple language if the child gives it, sub-section (3); with a translator or interpreter if the language is not understood, sub-section (4).

The child has nowhere safe to go. The police, after recording reasons in writing, must make immediate arrangements for care and protection, including admission to a shelter home or the nearest hospital, within twenty-four hours, sub-section (5).

Who else is told? The Child Welfare Committee and the Special Court, or the Court of Session where none has been designated, within twenty-four hours, with the child's need for care and protection and the steps taken, sub-section (6).

Change the facts: a photographic studio finds sexually exploitative images of a child in work brought to it. Its personnel shall inform the Special Juvenile Police Unit or the local police, section 20, and the section applies irrespective of the number of persons employed.

Now a false case. A man lodges a complaint of penetrative sexual assault against a neighbour solely to extort money from him. Section 22(1): up to six months, or fine, or both.

A child made a false complaint. No punishment shall be imposed on the child, sub-section (2).

An adult falsely accuses a child of an offence under the Act. Up to one year, or fine, or both, sub-section (3).

A newspaper prints the victim's school and neighbourhood. That is section 23(2), punishable under sub-section (4) with not less than six months, up to one year, or fine, or both; and the publisher or owner is jointly and severally liable for the acts of the reporter, sub-section (3). Only the Special Court, for reasons recorded in writing and in the interest of the child, may permit disclosure.

Distinctions

What this does NOT mean

The duty is not confined to those who saw the offence. It arises on apprehension that an offence is likely to be committed, as well as on knowledge that one has been.

It is not confined to adults, but it is not enforced against children. Section 19(1) names the child, and section 21(3) exempts him from punishment.

Good faith reporting carries no risk. Section 19(7) removes civil and criminal liability.

A complaint that fails is not a false complaint. Section 22(1) requires it to have been made solely to humiliate, extort, threaten or defame.

And section 23 is not an absolute bar on reporting the case. What is forbidden is identification of the child, and the Special Court may permit disclosure for recorded reasons in the child's interest.

Quick revision

• 19(1): any person, including the child, with apprehension of a likely offence or knowledge of a committed one, shall inform the Special Juvenile Police Unit or local police, notwithstanding the Code.
• 19(2) to (4): entry number, written record, read over to the informant, entered in a book; simple language for a child; a translator or interpreter where needed.
• 19(5) and (6): care and protection within twenty-four hours, including a shelter home or the nearest hospital, on reasons recorded; report to the Child Welfare Committee and the Special Court within twenty-four hours.
• 19(7): no civil or criminal liability for information given in good faith.
• 20: media, hotel, lodge, hospital, club, studio or photographic facility personnel, irrespective of the number employed, must report sexually exploitative material or objects.
• 21: six months for failure to report or record; one year and fine for a person in charge failing to report a subordinate; not applicable to a child.
• 22: six months for a false complaint made solely to humiliate, extort, threaten or defame; no punishment for a child; one year for an adult falsely accusing a child.
• 23: no report without complete and authentic information which lowers reputation or infringes privacy; no disclosure of identity, save by the Special Court for recorded reasons in the child's interest; publisher or owner jointly and severally liable; six months to one year, or fine, or both.

Test yourself

1. Who must report an offence under the Act? Any person, including the child, who has apprehension that an offence under the Act is likely to be committed, or knowledge that such an offence has been committed, to the Special Juvenile Police Unit or the local police, section 19(1).

2. What must be done within twenty-four hours? Two things. Where the child is in need of care and protection, immediate arrangements for it, including admission to a shelter home or the nearest hospital, section 19(5); and a report of the matter to the Child Welfare Committee and the Special Court, or the Court of Session where none has been designated, section 19(6).

3. Is an informant at risk? No. Section 19(7) provides that no person shall incur any liability, whether civil or criminal, for giving the information in good faith.

4. What is the punishment for failing to report? Imprisonment of either description up to six months, or fine, or both, section 21(1); and for a person in charge of a company or institution who fails to report an offence by a subordinate under his control, imprisonment up to one year and fine, section 21(2). Sub-section (1) does not apply to a child.

5. Who else has a statutory duty to report? Personnel of the media, a hotel, lodge, hospital, club, studio or photographic facility, by whatever name called, irrespective of the number of persons employed, on coming across material or an object which is sexually exploitative of a child, section 20.

6. When is a complaint a false complaint under section 22? When it is made, or false information is provided, against any person in respect of an offence under sections 3, 5, 7 or 9, solely with the intention to humiliate, extort, threaten or defame him.

7. May a newspaper name the child? No. Section 23(2) forbids disclosure of the child's identity, including name, address, photograph, family details, school, neighbourhood or any particulars leading to identification, unless the Special Court, for reasons recorded in writing, permits it in the interest of the child.