CHAPTER- 5

ROLE OF JUDICIARY IN PROTECTION OF CHILD

 CHAPTER-5

ROLE OF JUDICIARY IN PROTECTION OF CHILD

The role of judiciary and the field of jurisprudence has grown significantly in recent times due
to the significant increase in legal interference in modern times. The double guarantee of equality
before the law and equal protection of the law are recognized as two important pillars of human
rights in a universe where the freedom to claim and develop these rights is recognized as
independent of an unwritten or written constitution. The rules of justice are part of the desire of
ordinary people to obey the law and build a balanced society. Building a civilized society is the
lowest point of the law. This high level of respect is based on the independence of the judiciary
and its authority. There are many administrative flaws that are usually associated with moderate
activity and human rights. The Supreme Court has played an important role in protecting the
exclusive rights and privileges of the common man. The Supreme Court of India expanded the
scope of Article 21 of the Indian Constitution and ruled that the right to life is not just existence,
but the privilege to live with dignity. Therefore, if a child is a victim, it will not be considered an
offense against the child unless it is dealt with in accordance with Article 21 of the Indian
Constitution. The Indian Constitution implements all means, including the judiciary, so that the
status quo can be transformed into a new human order in which everyone has equal status and
equal opportunities. The judiciary plays a socio-economic and constructive role. Similarly,
Indian Judicial System has played an important role in ensuring the well being of children.
Keeping this in mind, the Supreme Court has at many times emphasized that the nation should
take care of the child who are the hope in the future of the nation. In this Chapter, several
dimensions of Indian Judicial system in relation to protection of children and their rights has
been analyzed under following heads.

5.1 Dynamic Role of Supreme Court in Protection of Fundamental Rights:

Article 12 to 35 of Constitution of India provides for Fundamental Rights. Children also possess
general fundamental rights as enshrined in our Constitution. Supreme Court plays a very notable
role in relation to Fundamental Rights. Firstly, it acts as the guardian and protector of
Fundamental Rights and secondly, it acts as interpreter of Fundamental rights. In relation to
Fundamental rights, Supreme Court acts as the “sentinel on the qui vive”.1

Supreme Court while observing the matter in Daryao v. State of U.P.2 commented on its role as
protector of Fundamental Rights-“the fundamental rights are intended not only to protect
individual’s right but they are based on high public policy. Liberty of the individual and the
protection of his fundamental rights are the very essence of the democratic way of life adopted
by the Constitution and it is the privilege and the duty of this Court to uphold those rights. This
Court would naturally refuse to circumscribe them or to curtail them except as provided by the
Constitution itself.”

The Supreme Court has articulated the doctrine of implied Fundamental rights. Supreme Court
has at several instances contented that in order to treat a right as fundamental right it is not
requisite that it should be expressly stated as fundamental right in constitution. Political, social
and economic changes happening in country may entail the recognition of new rights and law in
its eternal youth grows to meet social demands.3On the basis of doctrine of implied Fundamental
Rights Supreme Court had held Right to Education as fundamental right under Article 21 in case
of Mohini Jain v. State of Karnataka4.

5.2 Prohibition of Child Labour

“Article 24 of Constitution of India prohibits the employment of children below 14 years of age
in factories and hazardous employment. This article underlines the interest of public health and
safety of life of children.”

1
It means Watchful Guardian
2
AIR 1961 SC 1457
3
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178
4
(1992) 3 SCC 666
In furtherance of provision of this article, “Supreme Court has held in case of People’s Union
for Democratic Rights v. Union of India5 (popularly known as Asiad Case), that no child below
age of 14 years can be employed in construction industry as construction work is hazardous
employment and directed state government to take immediate action to include construction
work in schedule to Employment of Children Act, 1938, while expressing its concern about sad
and deplorable omission of it. In Labours Working on Salal Hydro Project v. State of Jammu
and Kashmir6, again emphasized that the construction work is a hazardous employment and
children cannot be employed in this work.”

One of the landmark judgments in regard to safety of children is M.C. Mehta v. State of Tamil
Nadu7. In this case, “the plight of children employed in sivakasi Cracker Factories was brought
to notice of Apex Court by public spirited lawyer Mr. M.C. Mehta by way of PIL in this regard.
It was stated that despite the constitutional provisions and several enactments passed by various
states which prohibit child labour the child labour and exploitation of children is a grave
unsolved problem in our country. The apex court held that, the children below the age of 14
years cannot be engaged in any hazardous industry, mines or other works and also has laid down
exhaustive guidelines how the state authorities should work to protect economic, social and
humanitarian rights of millions of children, working illegally in public and private sectors. Court
also directed setting up of Child Labour Rehabilitation Welfare Fund and asked the offending
employer to pay for each child a compensation of Rs. 20,000/- to be deposited in the Fund and
suggested number of measures to rehabilitate them in the phased manner.”

The Apex Court in BachpanBachaoAndolan v. Union of India & Others8, gave order “to
prohibit the employment of children in circuses and to raid circuses to free children, and
establish rehabilitation schemes for the child victims. This case is pioneer in regard to child
rights and child trafficking and exploitation as through this case it was came to light that children
were being trafficked and sold by their parents and were exploited as child laborers in these
circuses, and were also subjected to mental, physical, and sexual abuse.”

5
AIR 1983 SC 1473
6
AIR 1984 SC 177
7
AIR 1997 SC 699
8
AIR 2011 SC 3361
5.3 Protection of Children Against Exploitation

In case of Childline India Foundation vs. Alan John Waters and Ors.9,“the complaints of
physical and sexual abuse of children who were kept in shelter homes in Mumbai were presented
before the Supreme Court. Convicting the accused who deserved no leniency the court observed
as follows: “Children are the greatest gift to humanity. The sexual abuse of children is one of the
most heinous crimes. It is an appalling violation of their trust, an ugly breach of our commitment
to protect the innocent. There are special safeguards in the Constitution that apply specifically to
children.”“The Constitution has envisaged a happy and healthy childhood for children which
is free from abuse and exploitation”.

In Re Exploitation of children in orphanage in State of T.N. v. Union of India10, Supreme

Court recognized “the plight of children in orphanages and sexual exploitation of children and
gave detailed direction to union government and National Commission for Protection of Child
Rights as well as to State Commission for Protection of Child Rights and directed them to file a
status report in Supreme Court on or before 15 January 2018. Court held that the definition of a
child in need of care and protection must be given a broad and purposeful interpretation and that
the benefits envisaged for children in need of care and protection should be extended to all such
children in fact requiring State care and protection; so that children can be protected from
exploitation and abuse.”

5.4 Right to Education

“The right to education was not a fundamental right at time of commencement of Constitution
but was included as a Directive Principle under Article 45 which provided that State must
endeavour to provide within a period of 10 years from commencement of the constitution, for
free and compulsory education for all children until they completed 14 years of age.”

For the first time Supreme Court, in case of Mohini Jain v. State of Karnataka,11 held that “right
to Education is impliedly included under Article 21 of Constitution. Court held that word ‘life’
includes ‘education’ because education promotes good and dignified life. The court accepted that
the constitution does not expressly provides right to education as fundamental right but reading

9
(2011) 6 SCC 261
10
(2017) 7 SCC 578
11
AIR 1992 SC 1858
Article 21 along with Article 38, 39(a), 41 and 45, the court opined that ‘it becomes clear that the
framers of the constitution made it obligatory for the State to provide education for its citizens.”

In Unni Krishnan v. State of A.P.12, Apex Court was asked “to examine the correctness of
decision of Mohini Jain case. Supreme Court upheld its decision and declared that Right to
Education for Children of the age of 6 to 14 is a Fundamental Right under Article 21.”

Subsequent to these Judgments a new Article 21-A was added by “the Constitution (86th
Amendment) Act, 2002” which provided for “free and compulsory education to all children of
age of 6 to 14 years.”

Apex Court held in case of AvinashMehrotra v. Union of India13, “Right to Education includes
right to receive education in safe Schools. Schools should adhere to basic safety standards to give
effect to constitutional provision under Article 21-A. In this case, Supreme Court gave directions
to all government and private schools to implement safety measures prescribed by National
Building Code of India 2005 and also issued directions to education functionaries who were
asked to file a compliance report within 1 month. This case is one of the classic example of Apex
Court’s proactive role in protection of child and their safety.”

5.5 Welfare of Child- A Paramount Consideration

“A child is a national asset and therefore it is duty of the State to look after the child with a view
to ensuring full development of its personality.14Apex Court has shown its concern from time to
time in regard to welfare of children.”

In LakshmikantPandey v Union of India15 , “a writ petition was filed in regard to mal-practices

indulged in by social organizations and voluntary agencies engaged in the work of offering
Indian children in adoption to foreign parents. It was alleged that Indian children of tender age
are under the guise of adoption are exposed to the long horrendous journey to distant foreign
countries at great risk to their lives and in cases where they survive these children are not placed
in the Shelter and Relief Homes and in course of time they become beggars or prostitutes for

12
(1993) 1 SCC 645
13
(2009) 6 SCC 398
14
SheelaBarse v. Union of India, AIR 1986 SC 1773
15
(1984) 2 SCC 244
want of proper care. In this case, J. Bhagwati laid down principles and norms which should be
followed in determining whether a child should be allowed to be adopted by foreign parents and
if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the
child. Further, Court held that any adoption in violation of or non-compliance with, may lead
adoption to be declared invalid and expose person concerned with to strict action including
prosecution. In this very case, Court stated that,Children are a "supremely important national
asset" and the future well being of the nation depends on how its children grow and develop.”

5.6 Protection of Child Against Sexual Abuse

Vishal Jeet v. Union of India16,is a landmark judgment on the problem of trafficking in women
and children for sexual abuse and exploitation. In this case, “a Public Interest Litigation was filed
for issuance of certain directions and to look into issues of Red Light areas and forced
prostitution and to look into issues pertaining to dedication of young girls as Devadasi and Jogin
and child prostitution. The court examined the Constitutional provisions pertaining to right
against exploitation, traffic in human beings and rights of children and principles enumerated by
the Declaration of the Rights of the Child, 1959. Court considered all aspects of the matter before
it and then issued the several directions State Governments and Union Territories like speedy
action must be taken by the concerned law enforcing authorities for eradicating child
prostitution. And requisite steps must be taken to provide adequate and rehabilitative homes.
Court also directed to set up separate Advisory Committee consisting of relevant government
officials, sociologists, criminologists, members of the women/ child welfare/ voluntary social
organizations to make suggestions for eradicating child prostitution and the
devdasiandjogintradition; and measures for care, protection, treatment, development and
rehabilitation of victims.”17

It was brought to notice of Apex Court through PIL, in case of Munna v. State of U.P.18, that
“children were sexually exploited by the hardened criminals in Kanpur jail. Court directed the

16
AIR 1990 SC 1412
17
https://sherloc.unodc.org/cld/caselawdoc/traffickingpersonscrimetype/ind/1990/vishal_jeet_v._union_of_india.htm
l
18
(1982) 1 SCC 545
District Magistrate to visit jail and file the report on such confirmation court directed immediate
release of children from jail and ordered their transfer to Children’s home.”

In matter of Sakshi v Union of India19, a Public Interest Litigation, the Supreme Court of India
asked “the Law Commission to consider certain important issues regarding sexual abuse of
children submitted by the petitioner and the feasibility of amendment to Section 375 and 376
IPC.”

The Supreme Court has made recommendations to prevent child sexual abuse, in the case of
Shankar KishanraoKhade v. Maharashtra20.

(1) “In charge of schools / educational institutions, special houses, various types of
residences, hostels, pre-trial detention centers, prisons, jails etc. wherever other men had a
camp, irrespective of their experience. Incidents of sexual exploitation or violence, do you
believe that the incidents that have occurred are actually true knowledge, so that people who
sexually abuse or misbehave: Therefore, and asked what these issues relate to all incidents,
most Neighbors thus span states differently. As a result of a complaint the police force and he
and the man can count on his veracity, raise the boy and we should take care of the members'
families, which is a well-known council, it is not believed.”

(2) “Media personnel, directors of hotels, hospitals, clubs, studios and photographic studios,
for compliance and who shall provide information about compliance with Article 23 of the
Act under Article 20 of 2012.”

(3) “There is a greater risk of intellectual disability and physical, sexual and emotional abuse.
The people in the places where they live and are designed to defend the violence used against
Judge JJ / SJPU can either be police, which I can then contact any appropriate person.”

(4) “Further, it is clear that if the enemy is a member of one family and the other does not
limit the children to business plans or consultation with others. The girls feel that family
members take the child's best interest into intimacy with her.”

(5) “Hospital, public or private medical facilities where children are aware that children have
been admitted to the hospital as victims of sexual abuse. This was immediately reported to

19
(2004) 5 SCC 518
20
(2010) 5 SCC 546
 the judge and the YY Council / RB SJPU, after consultation with the SJPU, was required by
law to order as a child.”

(4) “Failure to report crimes against child sexual offenses after one year is considered
overwhelming and it is not difficult to prevent offenders from realizing their punishment.
And so, judge it under the law in criminal law class.”

(A) “The CNPC, often the Child Protection Committee (END) and SGPU May, j legislates
the Board of Directors or local government officials, such as child helplines, NGOs and
women's organizations.”

()) State Central Fear and Generation Provinces, if not above it, their provinces take the
initiative of knowledge and encouragement for the formation of SJPU and puppet councils
and should take immediate effective action on child care and safety advice. We should also
take steps to plead the culprit.

(4) The Central Government and each State Government had a system of provisions
described in Article 73 of the Act at regular intervals including Central Television, Radio and
Written Press / 2/2/2012. .

GhanashyamMisraVs State of Orissa21

In this case, “the accused who was a school teacher raped a 10-year-old girl who was his student.
The accused forced her to come into the house and raped her. The High Court upheld the
sentence of accused under Section 376 of the IPC and sentenced him to seven years rigorous
imprisonment as the accused had exploited the teacher-student’s relationship.”

Tukaram and Anar. Vs. State Maharashtra (Mathura rape case)22

In Mathura, “a minor was raped by two policemen when she went to record a statement.
According to the medical report, only signs of chronic injury were seen in Hyman, and no semen
stains were found. Thus, the prosecution failed to prove the case. The Supreme Court stated that
the nature of consent of the victim had to be determined from the circumstances and the
circumstances made it clear that the consent was not “passive”. There was no injury on the
person of the girl, it could not be deduced that the girl had been subjected to or was under any

21
AIR 1957 Ori 78, 1957 CriLJ 469
22
(1979) 4 SCC (jour) 17
fear or compulsion such as would justify an inference of any “passive submission”. Court set
asided the conviction of accused. ”

Munna&Ors.Vs State of Uttar Pradesh &Ors.23

“Adult inmates of Kanpur Central Jail were charged with sexually abusing youths. The
application states that the Sessions Judge was unable to meet the juvenile victims as they were
released within days of the news release. The court ordered the magistrate that under the Uttar
Pradesh Children Act 1951, no person under the age of 16 should be sent to jail. Keep children at
home or elsewhere in a safe place. The government should detain children under the age of 16.”

5.7 Case Laws under POCSO Act,2012

❖ Sharath Chandra PottalaVs Union of India24

The case was widely discussed for the following two reasons

“A) Section 34 gives the special court the power to determine the age of the accused when
questioning the age of a minor, although there is no provision to determine the age of the accused
despite its validity. Serious prejudice against the accused.

B) A special court under POCSO does not have the power to try a crime when the offender
grows up, so if a dispute or question arises about the age of the victim, the same decision-making
and denial procedure must be followed to rectify it and there are serious rights violations.

After POCSO considered it a challenge to the provisions of the law, errors, abnormalities or the
so-called Laguna lost their meaning and did not sue the constitution of the law. The court said it
was a disciplined maintenance and violated any provision of the Constitution on the basis of
legal qualifications or rules. The legal merits of the present case are not in question; The
implementation of the submitted law did not violate any constitutional provision. It said the law
was created to protect children from sexual abuse and harassment. The method of recording a
child's report is to conduct a medical examination of the child in accordance with Section 167 of
the Code of Criminal Procedure. Other special laws, such as the Information and Technology

23
(1982) HC 154
24
2013 SCC 152
Act, 2000, have been enacted under this Act with the status of a special court for the trial of
offenses. This application has been rejected by the Hon'ble Court.”

❖ SidduVs State of Karnataka and ors.25

The court explained the case in Section 34 of the POCSO Act. The Hon'ble Karnataka High
Court said that “the main purpose of considering the age of the accused under Section 34 is to
determine whether it is appropriate to punish and convict the accused. If the accused is under the
age of 18 and a minor, the Sessions Judge will lose the power to conduct the trial, and only the
Juvenile Justice Board will have the competent authority to handle the case and adjudicate
accordingly has been implemented. Therefore, it is up to the competent learned judge to execute
an order under Section 34, before deciding whether the accused is a minor or over 18 years of
age. Even the court session, if there is any doubt about the age of the accused, and if the court
needs some more evidence to settle the dispute, he can take such evidence and provide him with
a minor on the basis of that evidence. The age must be determined, and then the court must
proceed with the merits of the case.”

❖ GangadharSethyVs State of Orissa26

In this case, the court held“the age of the victim in accordance with Section 4 of the POCSO Act
to attract the content of the offense related to the punishment of sexual harassment as defined by
the victim. A child provided under section 2 (d) of the POCSO Act must be a "child", "child"
refers to any person under the age of eighteen and 376 (2) (i) of the Indian Penal Code when a
woman is under the age of sixteen. Only then will she be raped and only then will she be
affected. After looking at the evidence, the court was satisfied that the victim was between the
ages of five and seven, thus satisfying one of the two offenses, namely, Section 376 (2) (i) of the
IPC and Section 4 of the POCSO Act.”

A medical examination of the court note “in response to the victim's question about rape or
assault sexual harassment revealed that the victim was a minor at the time of her examination
and there was no evidence of recent or previous sexual intercourse. There are no injuries around
his person or his private parts. The report further found that the victim was a six-year-old

25
(2015) CPN 200335
26
2011 (1) ILR-CUT 926
teenager and her hymen was intact and no penetration was tested during the test. The court
considered that Section 3 of the POCSO Act did not satisfy any of the issues. Thus, it cannot be
said that Section 4 of the POCSO Act provides for punishment for sexual harassment. Similarly,
in the absence of any report or any medical evidence that the appellant has been sexually abused,
it is not appropriate to punish the appellant under section 376 (2) (i).”

The court said “the material on the record showed that the victim's personal organs were attacked
and that the content of the crime was cleared under Section 6 of the POCSO Act. Thus, the court
held that the sentence of the appellant under section 376 (2) (i) of the IPC was not prolonged as
per the law and he was kept separate accordingly and instead he would be punished under section
354 of the IPC. Similarly, Section 4 of the POCSO Act sets aside the order to punish the
appellant; instead he is guilty under Section 8 of the POCSO Act.”

❖ P. Shanmugavel Raj v. State and R.S.27

In this case, the court considered in detail sections 28 and 32 of the POCSOAct 2012. Since the
Hon'ble Court has read Section 26 of the POCSO Act simply, “Parliament has empowered the
State Government to appoint a Sessions Court to be a special court for hearing offenses under
this Act. In other words, the Fox Act does not give the state government the power to create or
form new courts under the law, but it does give the state government the power to appoint a
session court in each district as a special court to hear crimes under the law. The court further
held that the state government has an obligation to appoint a special public advocate for each
particular court to conduct cases under the provisions of the POCSO Act under Section 32 (1) of
the POCSO Act. The state government did not fail to appoint a special public prosecutor as the
investigation under the POCSO Act was not unreasonably delayed as the state government could
not revoke its responsibility. Just to achieve this decision, Parliament, with its wisdom, has
imposed on the state government the legal obligation to appoint a special public prosecutor so
that cases are not affected as lawyers are needed.”

❖ K. MuthuMariappanVs The State s. Nagamuthu28

27
P.Shanmugavel Raj ... Revision vs State Rep. By on 14 March, 2014. Offences Act, 2012 (hereinafter would be
referred to as POCSO Act).
28
MANU/TN/1611. /2015
In this case, “the court gave a subtle explanation of the various rules of the POCSO. The court
found that in order to attract any offense under the provisions of the POCSO Act, the prosecution
had to prove that he was a child, according to the date of the commission of the offense. The
term "child" is defined in Section 2 (d) of the Act, which refers to any person under the age of 18
if a child. Therefore, for any crime under the kidnapping offense and POCSO law, the age of the
victim must be less than 18 years of age on the critical date. The court decided whether the
action of the accused for having sex with the victim was under Section 4 or Section 5 (1) r/w s6
of the Act. The court defined "Section 2 (f) of the POCSO Act as" infiltration into sexual
harassment ", which reads as follows: -" Sexual assault has the same meaning as section 3 ".
Section 5 (l. ) As follows: “If a person sexually abuses a child more than once or more, he is said
to be committed to sexual abuse. Goes "Sections 3 and 5. This is a major offense between them.
Bad sexual harassment, consisting of many specialties, involving only sexual assault infiltration,
made of those few specialties. Therefore, there can be no difficulty. Sections 4 and 6 read with
sections 5 and 1 of the POCSO Act Note that the offenses are known and Section 4 of the
POCSO Act is a minor offense under Section 6 r / w Section 5 (1) of the POCSO Act.”

In order to clarify “the above conclusion, the court also joined the sentence given under these
sentence rules. Although life imprisonment is punishable by a maximum sentence under Sections
4 and 6, the minimum sentence imposed under Section 4 of the POCSO Act is imprisonment for
a term not less than seven years, whereas the POCSO Act. The minimum sentence under Section
6 is a maximum sentence of not less than ten years.”

Under Section 4 of the POCSO Act, the term "imprisonment" may be an interpretation, i.e.,
severe or simple, whereas under Section 6 of the POCSO Act, the term imprisonment may be
simply severe. From these materials, it can be noted that even in the case of punishment, Section
4 of the POCSO Act is smaller than Section 6 of the POCSO Act. The appellant's fault is not
unlawful under Section 4 of the POCSO Act and is therefore liable to be confirmed.

❖ Pranil Gupta Vs State of Sikkim29

The victim's consent in his case took about 14 years. The accused were charged under Section 4
of the POCSO Act, 2012 and Section 363 of the Indian Penal Code, 1860. The Hon'ble Tribunal
rejected the appellant's contention that it was a consensual act and that they were having an

29
CRL No. 32, 2014
affair. Sucker said the court saw Section 375 of the IPC, which states that it is irrelevant if the
victim's consent is under the age of 18 in the event of a rape offense. Similarly, for an offense
under the POCSO Act, 2012, this is a very serious act and has no effect on the child’s consent
because he is protected by the provisions of the law. The court admits that the victim woman
went to Belling with her friend to meet the accused, and that she stayed with the accused of her
own free will. However, under Section 3 of the POCSO Act, 2012, minority consent to a crime is
inappropriate. It should also be borne in mind that for the purposes of section 30 (2) (30) (1) of
the POCSO Act 2012, a fact must be proved only if the Special Court considers it to be a
reasonable doubt. Beyond that. Its existence is not limited to when the probability is established
by the prototype. It has also been clarified that “criminal mindset” includes intent, purpose,
knowledge of the truth and reason or belief in believing a fact. Therefore, U / s 313 of Cr.P.Cis
simply a denial of guilt. Will not be sufficient by the accused, and he must establish the absence
of Mensrea beyond a reasonable doubt.

❖ Jagat Singh Vs State of H.P30

In this case, “a little girl was severely abused by the accused in the war by touching her private
parts. If the accused is charged under Section 354 (a) of the IPC and Section 8 of the POCSO Act
2012, a petition has been filed under Section 438 of the CRPC 1973 to grant pre-bail. The High
Court said. Under Section 30, a convicted felon is considered guilty and the accused must prove
that he or she does not have such a felony. According to Section 42-A , the provisions of other
laws will be affected to the extent of inconsistencies in the provisions of the POCSO Act.
Section 7, stipulates that the law requires the imposition of sexual intent to touch a sexual vagina,
naked penis, naked anus or the naked breast of a child. Against the accused. The court has
carefully followed sections 7 and 8 of the Protection of Children from Sexual Offenses Act 2012.
The court held that there was no recurrence in Section 7 of the POCSO Act that a naked vagina,
naked penis, anus of a naked child or sexual intercourse with a naked breast should be intended.
The court held that Sections 7 and 8 of the Protection of Children from Sexual Offenses Act
2012 may still touch the vagina, penis, anus or breast of a minor child even if the minor is
wearing clothing. The word nudity does not exist in Section 7 of the Protection of Children from
Sexual Offenses Act, 2012, and the Protection of Children from Sexual Offenses Act 2012 is a

30
CRL A. 1145/2010
well-established law that applies to the protection of minors. The Ordinary Law that the Court is
the guardian of 12 persons is a minority, and it is a well-established law that if two
interpretations are possible, the Court must accept in favor of the juvenile an interpretation at the
conclusion of justice. The court considers that releasing the applicant on pre-bail is not useful in
a judicial decision. Therefore, the pre-bail petition filed by the applicant is dismissed.”

❖ Youth Bar Association of India Vs. India and other associations31

In this case, the writ petition under Article 32 of the Constitution of India was filed at the request
of the Indian Youth Bar Association.

An offender has the right to obtain a copy of the previous information report under section 207
of the CRPC. “The first information can be found in the report, the concerned representative or
the concerned police officer or the Superintendent of Police may submit an application for a
certified copy of the payment of such fee through their representative / agent. Upon submission
of such application, a copy will be provided within twenty-four hours. (C) When the first notice
of report is sent by the police station to the relevant magistrate or any special judge, the
application shall be issued by the relevant court within two working days, on behalf of the
accused in the application filed for a certified copy. . This instruction has nothing to do with the
legal order under section 207 of the CRPC. Crimes under the section, POCSO Act and other such
offenses must be uploaded on the Police website, and if there is no such website on the official
website of the State website, within twenty-four hours of the first information report being filed.
The accused or any person associated with it can download the FIR and file a legally relevant
application to redress their grievances. It may be clarified here that the time can be extended up
to forty-eight hours if there are connection problems due to geographical location or unavoidable
difficulty. The stated 48 hours can be extended up to a maximum of 72 hours and is only
associated with connection issues due to geographical location. ((The decision not to upload a
copy of the FIR to the Website shall not be made by any officer below the rank of Sub-Police
Superintendent or by any person of equivalent rank, in which case the District Magistrate may
have a share and may consider that power. The decision of the magistrate shall be duly
communicated to the relevant judicial magistrate. G) If the FIR is not uploaded, it goes without
saying that it does not guarantee a ground for gaining benefits under section 438 of the CRPC.

31
Writ petition CRL No. 68/2016
(H) If a copy of the FIR is not available on the ground. The hand unhappy person may submit
representation to the Superintendent of Police or any person holding an equivalent position in the
State after disclosing his identity. The Superintendent of Police will set up a committee of three
officers to handle the complaint. In the case of metropolitan cities, where the commissioners are
present, if any representation is made to the Commissioner of Police, they will form a committee
of three officers. The formed committee will handle the complaint within three days from the
date of receipt of the representation and notify the aggrieved person. (i) The competent officer
instructed here within eight weeks from today, as instructed. (j) In cases where it has been
decided not to provide copies to the FIR in view of the importance of the case, it will be open to
the accused / his authorized representative / attorney to apply for the certified grant. Copy. The
FIR sent to the court will be filed by the concerned court no later than three days from the date of
submission of the application. (K) Instructions for uploading FIRs on all state websites will be
provided from November 15, 2016.”

❖ Avinashvs Karnataka State32

In this case, “the appellant had sexually assaulted after abducting the victim in the early hours of
the night. The accused was charged under Section 366 of the IPC and Section 4 of the POCSO
Act. The trial court issued a sentencing order. Dissatisfaction with the sentence and sentence is
appealed to the Hon'ble High Court. Before considering the question of whether there is any
crime under Section 4 of the POCSO Act, the Hon'ble High Court noted that the age of the
victim is a significant point to be determined. Section 366 IPC. To prove age, only a xerox copy
of the SSLC score card is provided. It therefore appears to the court to grant the Government the
opportunity to produce the original SSLC mark card, to consider it in its production, and to allow
the production of any other supporting evidence, and then to adjudicate the case Law with The
court set aside the sentence and sentence while the case was being heard. Calculate with an
instruction to give the lawyer the opportunity to create the look of the above document.”

❖ Ramarhit Singh V. Dhananjay Singh33

In this case, “the petitioner left her two minor sons and minor daughter at the age of about 13
years 4 months 16 days (victim woman) in her home. An FIR has been registered under Section

32
CRL No. 126/2020
33
2006 CriLJ 3873, RLW 2006 (3) Raj 2217, 2006 (4) WLC 296
6 of the POCSO Act and Section 506 of the IPC and an indictment has been filed against the
accused. The Court makes it clear that after reading the provisions of the Act, i.e. Sections 4, 2,
31, 33 and 42-A, no offense under this Act can be known by a special court without or without
any order. A grievance redressal solution to such a crime or a police report on such facts. If the
Special Court receives the right to know the guilt on the complaint or the police report on the
facts that constitute the crime under the law, the Judicial Magistrate has no right to consider and
consider the application for bail by any of the accused. There is no jurisdiction. Continued for the
crime under the law. The magistrate does not doubt the law in enforcing the order for the first
remand of the accused, and is prosecuted for an offense under the law, and the accused is
produced before him as he has the power under section 167 of the CRPC. However, he has no
authority to comply with any subsequent remand order and can only consider or appease any
application for bail filed by such defendants, which can only be done by a special court. The
Court therefore concludes that there is little doubt in accepting the legal proposition that there is
only a special court with all the powers under the POCSO Act to try and appease the offender.”

❖ Supreme Court asks HCs to compel states to allot prosecutors for POCSO cases:

On 7, April, 2017, the Supreme Court directed the 11 Chief Justices of the High Court to act in a
special court to hear cases related to child abuse under the POCSO Act to appoint independent
public prosecutors. Chief Justice Jagadish Singh Khehar, Justice D.Y. Chandrachud and Judge
Sanjay KishanKaul issued the order in a petition filed by lawyer Kurab Kumar Bansal seeking to
have such cases converted into special courts under the Child Abuse Protection Act, 2012, as
‘exclusive courts’ to hear such cases. He told the court that these states had failed to appoint
independent public prosecutors under Gujarat, Goa, Madhya Pradesh, Maharashtra, West
Bengal, Chhattisgarh, Arunachal Pradesh, Manipur, Meghalaya, Mizoram and the Union
Territory of Andhra Pradesh. Territory and new in the Union Territory. POCSO violates Section
27 of the law to set up a special court.Section 26 of the Act states that there shall be at least one
special court in each district.

5.8 Other important Case Laws

❖ RIGHTS OF ILLEGITIMATE CHILDREN
Section 16 of Hindu Marriage Act, 1955 confers legitimacy on children born out of a void
marriage. Apex Court34 held this section as valid under Article 14 as it treats all illegitimate
children similarly circumstanced as forming one class for conferment of legitimacy. But such
children did not have had a right to inherit the ancestral property. However, Supreme Court in
case of Revanasiddappa v. Mallikarjun35, held that “child born in illegitimate relationship/Void
Marriage is innocent and is entitled to all the rights to property to which his parents are entitled
whether ancestral or self-acquired property”. Court differed from prior judgments in
interpreting Section 16(3) of Hindu Marriage Act, 1955 that “such children are only entitled to
the property of their parents and not of any other relation.36” Court stated that, amendment
intended to remove difficulties in interpretation of Section 16 and this provision should be
interpreted having regard to equity of the statute and Articles 39(f) and 300-A of the
Constitution.

❖ ENSUARANCE OF HUMAN DIGNITY AT CARE HOMES

In VikramDeo Singh Tomar v. State of Bihar,37 Apex Court had taken the note of pitiable
conditions prevailing in care homes which were maintained by the State of Bihar for children
and women and directed the State to improve conditions of these homes and to provide at least
minimum living conditions ensuring human dignity. Court further held that, “the right to live
with human dignity is the Fundamental Right of very Indian Citizen.”38

34
Smt. ParayankandiyalEravathkanapravanKallianiAmma&Ors.v. K. Devi &Ors. AIR 1996 SC 1963
35
(2011) 11 SCC 1
36
J. Venkatesh, Illegitimate children entitled to ancestral property: Bench, The Hindu, April 8, 2011
https://www.thehindu.com/news/national/Illegitimate-children-entitled-to-ancestral-property-
Bench/article14674196.ece
37
AIR 1988 SC 1782
38
Ibid at 1783
Supreme Court has again in matter of UpendraBaxi v. State of Uttar Pradesh39, given directions
to the State Government to improve the living conditions in government protective homes at
Agra.

❖ RIGHTS OF CHILDREN OF PROSTITUTE

In Gaurav Jain v Union of India40, the Supreme Court held that the children of the prostitutes
have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be
part of the mainstream of social life without any pre-stigma attached on them and rejected the
demand for providing separate schools and hostels for the children of prostitutes as it was not in
interest of such children. The Court directed for the constitution of a committee to formulate a
scheme for the rehabilitation of such children and child prostitutes and for its implementation
and submission of periodical report of its Registry.

❖ CHILD SENSITIVE APPROACH BY COURTS

In State of Rajasthan v. Om Prakash41, apex court referred to the special safeguards provided
for children in Article 39 to caution Courts to have sensitive approach when dealing with cases
of child rape.

“Supreme Court has laid down guidelines in Sakshi v Union of India 42with regards to holding
trial in cases of child rape or abuse such as screen to be placed between victim and accused,
sufficient breaks to be given to child during testimony etc. District Judges and magistrates must
give their special attention that these directives are strictly followed both in letter and spirit.”

❖ RIGHT OF CHILDREN LIVING IN PRISON WITH PRISONER MOTHER

39
AIR 1987 SC 191
40
AIR 1997 SC 3021
41
(2002) 5 SCC 745, at page 749
42
(2004) 5 SCC 518
In a significant decision in R.D. Upadhayay v. State of Andhra Pradesh43, “Apex Court showing
serious concern regarding the plight of children living in jails with prisoner mothers issued
detailed guidelines for their interest regarding food, shelter, medical care, clothing, education and
recreation facilities which are declared to be child’s right. The court also issued directions as
regards to their diet. The court held that before sending to jail a women who is pregnant the
authorities concerned must ensure that jail in question has basic minimum child delivery as well
as pre natal and post natal care for both, the mother and child. Birth of child in prison not to be
recorded as “prison” in Birth Certificate. It shall be registered in a local birth registration office.
Child above 6 years are not to be kept with female prisoners. The court directed that the jail
manual must be amended suitably so as to incorporate these changes”

❖ Having sex with one's own wife by a man under the age of 18 is called legal rape

Recently, in case of the Independent Thought V Union, Judge Lokur, concluded decades of
disparities between the IPC and other child protection laws, held that “a child is a child whether
he is a street child or an abandoned child. Similarly, a married child or an unmarried or divorced
child or a divorced or widowed child remains a child. This judgment discusses the seriousness of
the POCSO law and includes a woman or boy under the age of 18. The JJ Act covers all children
under the age of 18. Also, the minimum age for marriage in the PCMA is 18. The shortcoming
between these Special Laws on Children and the IPC must be in accordance with IPC 5 and 41.

5.9 Suo-moto Cognizance by Supreme Court for protection of Children

In Re Contagion of Covid-19 Virus in Children Protection Homes44, “Apex Court took

Suo-moto cognizance of plight children who need care and attention and are kept in or children
in conflict with law who are kept in various types of homes and observed that, as the pandemic
Covid-19 is intensifying in India, it is important that urgent measures need to be taken on
priority to prevent the spread of the virus to Child Care Institutions and in this view issued

43
AIR 2006 SC 1946
44
SUO MOTO WRIT PETITION (CIVIL) NO. 4 OF 2020
several guidelines to be followed by Child Care Institutions, Juvenile Justice Board and to
government.”

5.10 Judicial trends in safeguarding the interest of the child during trial in
cases of rape and sex abuse

❖ State of PunjabVsGurmit Singh &Ors.45

In this case SC observed the various guidelines as following:

The courts should examine the broad possibilities of a case and not make minor inconsistencies
or trivialities in the attorney's statement, which is not a risky nature, otherwise in order to
conduct a credible case. There should be rules for investigating rape cases on camera and with
exceptions, there should be a transparent investigation into such cases. Whenever possible you
should have all four of these components in place for launch to maximize profits. If possible,
female judges should try to prosecute female victims in a way that provides a better solution for
female victims and provides better evidence and appropriate justice. In this case, the court also
hoped that "Parliament will take seriously the issues raised by the petitioner and enact
appropriate legislation as soon as possible."

❖ Sakshi V. UOI &Ors46

The SC provides the following guidelines for the investigation of child abuse and / or rape
offenses: re-investigation or trial of an offense under S354 (against assault or insulting a woman
using criminal force) or S377 (2) (under offense S377). Any person interested in the victim or
any such victim shall be compelled to do anything illegal or criminally charged). To protect the
interests of the child victim of such offenses the Court further provided:

1. Curtains or certain arrangements be made where the victim cannot see the accused;

2. Questions put on behalf of the accused in connection with a crime-related incident should
be put in writing to the Chief Justice of the Court so that they can be put in clear language to
the victim or to the non-offending witness. ;

45
1996 AIR 1393, 1996 SCC (2) 384
46
Writ petition Crl 33/1997
 3. A person who has been the victim of child abuse or rape should be given adequate rest
when needed.

5.11 Recent Cases of POCSO Act:

❖ Mental Age of Victim Child Like not covered under POCSO Act:

The Supreme Court in case of Ms. Era vs. State47, “refused to extend the application of the Act
to mentally retarded individuals. The Bench comprising Justice DipakMisra and Justice R.F.
Nariman opined that such interpretation would lead to transgression of the judiciary in the field
of legislative law making”

❖ Upheld Constitutionality of Section 29 and 30 of POCSO Act, 2012:

In case of Justin v. Union of India and others48,the Kerala High Court “upheld the
constitutional validity of Sections 29 and 30 which creates a reverse burden of proof on the
accused. A single bench of Justice Sunil Thomas rejected the arguments that these provisions
violated fundamental rights under Articles 14, 20(3) and 21 of the Constitution of India. The
Court noted that statutes imposing limited burden on the accused to establish certain facts which
are specifically within his knowledge are not rare in Indian Criminal Law.”

Court further stated that “ such provisions cannot be held to be unconstitutional due to the fact
that they reverse the burden of proof from the prosecution to the accused if they are "justifiable
on the ground of predominant public interest".”

❖ Controversial Judgments of HC stayed by SC:

47
CRIMINAL APPEAL NOS.1217-1219 OF 2017; SC
48
WP(C).No.15564 OF 2017(U); Kerala HC
In January 2021, within a span of less than a week, the Nagpur Bench of Bombay High Court
delivered two judgments in separate cases of child sexual abuse, Libnus v. State of
Maharashtra49 and Satish v. State of Maharashtra,50that have been severely criticized by all. In
case court held that groping “without skin-to-skin contact” does not amount to “sexual assault”
under aforesaid Act however this order has been stayed by Supreme Court.

Judiciary, being one of the pillars of Indian Democracy, has always recognized that child welfare
policies and protection of children and their rights are the paramount consideration for any
country as children are future of our Nation. The judiciary plays a socio-economic and
constructive role. Similarly, Indian justice system has played an important role in ensuring the
well being of children. It is pertinent to note that, Sexual abuse embodies social stigma which has
lifelong adverse consequences for the victims which consequently results in a reluctance to
report the crime. The attitude of law enforcement agencies is at times of callous and
unprofessional nature which creates self-blame and victim-shaming tendencies in the society and
thereby breeds the feelings of despair and discontent in victims and their families. Want of fair
and scientific investigation along with unusual delays in proceedings of court generally at times
results in acquittal of the person accused of child abuse. Apart from it, another issue for concern
is pendency of cases in trial courts which is growing every year. Therefore, apart from timely
reporting and registration of cases, timely disposal of cases in fair manner are essential requisites
for criminal proceedings dealing with child abuse for proper and fair justice to victims.

49
CRIMINAL APPEAL NO. 445 OF 2020;IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
50
CRIMINAL APPEAL NO. 161 OF 2020; IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH.