The Miscellaneous Chapter of POCSO

In one line

The last chapter supplies the child's helpers and his lawyer, keeps doctors out of the offence sections, and settles how POCSO stands beside the Penal Code.

In exam wording: sections 39 to 44 of the Protection of Children from Sexual Offences Act, 2012 provide for guidelines for expert assistance, the child's right to legal assistance, the exclusion of medical examination and treatment, alternative punishment, the Act's relation to other laws, public awareness and monitoring.

Why the law has this at all

Three loose ends are tied here, and each of them would have caused real trouble if it had been left.

The doctor. Section 3 defines penetrative sexual assault as including the insertion of an object into the vagina or anus of a child. Read literally and without more, that describes a medical examination. Section 41 removes the difficulty by disapplying sections 3 to 13 where the examination or treatment is undertaken with the consent of the parents or guardian.

The overlap with the Penal Code. The same act is very often an offence under both statutes, and the two carry different punishments. Section 42 answers with a rule of greater punishment, and section 42A with a rule of overriding effect. They are different rules answering different questions, and confusing them is the commonest error on this topic.

The child's own voice in the case. A criminal trial is between the State and the accused, and the victim's family has no standing. Section 40 gives them counsel of their choice, and, where they cannot afford one, obliges the Legal Services Authority to provide a lawyer.

And sections 43 and 44 close the Act exactly as sections 108 and 109 of the Juvenile Justice Act close that one: publicity and training, then monitoring by the National and State Commissions for Protection of Child Rights. The two statutes end on the same two provisions, which is worth saying in an answer that compares them.

Some words this chapter uses

The proviso to section 301 of the Code permits a privately instructed pleader to act under the directions of the Public Prosecutor and to submit written arguments with the Court's permission; the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita is section 338(2).

Greater in degree, in section 42, refers to the punishment, not to the gravity of the offence as described.

In derogation of, in section 42A, means taking away from.

Sections 39 and 40: help for the child

Section 39, experts. Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for the use of non-governmental organisations, professionals and experts, or persons having knowledge of psychology, social work, physical health, mental health and child development, to be associated with the pre-trial and trial stage to assist the child.