The Miscellaneous Chapter of POCSO

Section 40, legal assistance. Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973, the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act.

Proviso. If the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.

Note the opening words of section 40. The right is subject to the proviso to section 301 of the Code, which means the counsel engaged by the family acts under the directions of the Public Prosecutor and may, with the permission of the Court, submit written arguments after the evidence is closed. He does not conduct the prosecution.

Section 41: medical examination and treatment

The provisions of sections 3 to 13, both inclusive, shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian.

Two elements. The exclusion covers sections 3 to 13, that is penetrative sexual assault, its aggravated form, sexual assault, its aggravated form, sexual harassment and the use of a child for pornographic purposes. And it operates only where the examination or treatment is undertaken with the consent of the parents or guardian.

Sections 42 and 42A: POCSO and other laws

Section 42, alternative punishment. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, or section 509 of the Indian Penal Code, or section 67B of the Information Technology Act, 2000, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Section 42A, non-derogation. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force; and in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

Keep the two apart by the question each answers.

Section 42 asks: which punishment? Where the same act is punishable under both statutes, the offender is liable only under the one giving the greater punishment. It is not a choice for the prosecution, and it does not mean two convictions.

Section 42A asks: which provision prevails? POCSO is in addition to other laws, so it does not repeal them; but where they are inconsistent, POCSO overrides, to the extent of the inconsistency.

Section 42A was inserted by the Criminal Law (Amendment) Act, 2013, after the original section 42 had been found to leave the relationship between POCSO and other statutes unsettled.

Sections 43 and 44: awareness and monitoring

Section 43. The Central Government and every State Government shall take all measures to ensure that:

(a) the provisions of the Act are given wide publicity through media, including television, radio and the print media, at regular intervals, to make the general public, children, and their parents and guardians aware of them; and (b) the officers of the Central and State Governments and other concerned persons, including police officers, are imparted periodic training on matters relating to the implementation of the Act.

Section 44, monitoring.

Sub-section (1). The National Commission for Protection of Child Rights constituted under section 3, or the State Commission constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005, shall, in addition to the functions assigned to them under that Act, also monitor the implementation of this Act, in the prescribed manner.

Sub-section (2). While inquiring into any matter relating to any offence under this Act, the Commission shall have the same powers as are vested in it under the 2005 Act.

Sub-section (3). The Commission shall include its activities under this section in the annual report referred to in section 16 of that Act.

Section 43(b) differs from its Juvenile Justice Act counterpart in one small respect worth noticing: it names police officers expressly among those to be trained.

A worked example

A doctor examines a child at her parents' request and, in the course of the examination, does what section 3 describes.

Has he committed an offence? No. Section 41 disapplies sections 3 to 13 to a medical examination or medical treatment undertaken with the consent of the parents or guardian.

Change the facts: no consent was taken and there was no medical purpose. Section 41 does not protect him, and the offence sections apply.

Now the trial of the real offender. The family wants its own lawyer.

May they have one? Yes, counsel of their choice, section 40; and if they cannot afford one, the Legal Services Authority shall provide a lawyer.

What may that lawyer do? The right is subject to the proviso to section 301 of the Code, so he acts under the directions of the Public Prosecutor and may, with the Court's permission, submit written arguments after the evidence closes.

The child needs support before and during the trial. The State Government's guidelines under section 39 provide for non-governmental organisations, professionals and experts, or persons with knowledge of psychology, social work, physical health, mental health and child development, to be associated at the pre-trial and trial stage.

The same act is an offence under section 6 of POCSO and under section 376AB of the Indian Penal Code. Section 42 applies: the offender is liable only under whichever provides the punishment greater in degree, and notwithstanding anything in any other law.

Another statute contains a provision inconsistent with POCSO on the same point. Section 42A: POCSO is in addition to and not in derogation of that law, but overrides it to the extent of the inconsistency.

The State says the public does not know the law. Section 43 obliges the Central and State Governments to give it wide publicity through television, radio and print media at regular intervals, and to train officers, including police officers, periodically.

And who checks that any of this happens? The National Commission for Protection of Child Rights or the State Commission, which monitor implementation, have the same powers as under the 2005 Act when inquiring into an offence, and report their activities in the annual report under section 16 of that Act, section 44.

Distinctions

What this does NOT mean

Section 41 is not a general defence for doctors. It requires the examination or treatment to be undertaken with the consent of the parents or guardian.

Section 42 does not permit two punishments. The offender is liable only under the one providing the greater punishment.

Section 42A does not repeal anything. POCSO is in addition to other laws, and overrides only to the extent of the inconsistency.

Section 40 does not give the family control of the prosecution. It is subject to the proviso to section 301 of the Code, under which privately engaged counsel acts under the Public Prosecutor's directions.

And section 44 does not create a new body. It gives the existing National and State Commissions for Protection of Child Rights this Act to monitor as well.

Quick revision

• 39: the State Government shall prepare guidelines for non-governmental organisations, professionals and experts, and persons with knowledge of psychology, social work, physical health, mental health and child development, to assist the child at the pre-trial and trial stage.
• 40: the family or guardian may have counsel of their choice, subject to the proviso to section 301 of the Code; and where they cannot afford one, the Legal Services Authority shall provide a lawyer.
• 41: sections 3 to 13 do not apply to a medical examination or medical treatment undertaken with the consent of the parents or guardian.
• 42: where the act is punishable under this Act and under the listed sections of the Indian Penal Code or section 67B of the Information Technology Act, 2000, the offender is liable only under the law providing the punishment greater in degree.
• 42A: the Act is in addition to and not in derogation of any other law, and in case of inconsistency it has overriding effect to the extent of the inconsistency.
• 43: wide publicity through television, radio and print media at regular intervals, and periodic training of officers including police officers.
• 44: the National and State Commissions for Protection of Child Rights monitor implementation, with the same powers as under the Commissions for Protection of Child Rights Act, 2005, reporting in the annual report under section 16 of that Act.

Test yourself

1. Is a doctor examining a child liable under section 3? No, where the medical examination or medical treatment is undertaken with the consent of the child's parents or guardian; section 41 disapplies sections 3 to 13 in that case.

2. What does section 42 provide? That where an act or omission is an offence under this Act and also under the listed sections of the Indian Penal Code or section 67B of the Information Technology Act, 2000, the offender found guilty shall be liable to punishment only under this Act or under the Indian Penal Code, whichever provides the punishment greater in degree.

3. How does section 42A differ from section 42? Section 42 decides which punishment applies where the same act is punishable under two statutes. Section 42A decides which provision prevails: the Act is in addition to and not in derogation of any other law, and in case of inconsistency it has overriding effect to the extent of the inconsistency.

4. What legal assistance is the child's family entitled to? The assistance of a legal counsel of their choice for any offence under the Act, subject to the proviso to section 301 of the Code; and where they are unable to afford counsel, the Legal Services Authority shall provide a lawyer, section 40.

5. Who assists the child at the pre-trial and trial stage? Non-governmental organisations, professionals and experts, or persons having knowledge of psychology, social work, physical health, mental health and child development, under guidelines the State Government prepares, section 39.

6. What must the Governments do to make the Act known? Give its provisions wide publicity through media including television, radio and print at regular intervals, so that the general public, children and their parents and guardians are aware of them; and impart periodic training to officers and other concerned persons, including police officers, section 43.

7. Who monitors the implementation of the Act? The National Commission for Protection of Child Rights, or the State Commission, constituted under the Commissions for Protection of Child Rights Act, 2005, in addition to their functions under that Act, with the same powers when inquiring into an offence, and reporting their activities in the annual report under section 16 of that Act, section 44.