 on different platforms, seminars and webinars with effect of course code. And therefore we have divided this topic though it's vast to understand the procedural law and the substantive law. In the first session, we would be discussing the procedural law because we thought if we understand the procedural law then the automatic code would be that one can understand the substantive law in that sense. And amongst us, we have two prominent speakers, Dr. Justice Charlie Fanzalkar Joshi and Dr. Roshan Dalvi, both former judges of the Bombay High Court. And what a pandemic has brought us that we are able to connect with the one of the best resource persons for the webinars ban India and ban world. And it's always a pleasure when you have good speakers with us to share the knowledge. And those who have been connected with beyond law have seen that Justice Joshi and Justice Roshan Dalvi have been sharing their insights on this platform. And we can, we only be enamoured by the fact that these sessions are very well received because they take us deeper in sight because they say for a law, you have to dive deep and then only you can get the pearls otherwise you can just dive and dive in the ocean. Without taking much time, since the first session would be, I can say, taking the procedural aspects by Justice Joshi and request Justice Roshan Dalvi to introduce the topic and then we will request Justice Joshi to take the things forward. What do you have? Good afternoon, friends. And good afternoon, Justice Joshi and Vikas. This is a very fragile topic. And you've got a real sturdy speaker for that topic. Now, Justice Joshi has written a book which promises to be the Bible of child rights and child rights more specially the child sexual abuse. So she will be speaking of course about that subject but I will be feeling in my duty if I did not tell you about this aspect. So to begin with, it is good to understand the social implications and aspects of a law like epoxy. It deals with children. It deals with children of our country. In this case, we work without barriers. We work for the children. Whoever are the stakeholders in a system, be they police, prosecutors, medical officers, judicial officers or legal officers, we work for the children. Now, when I was a sessions judge, there was no epoxy. But I applied what I thought would be the principles of epoxy. When Dr. Salini Joshi wrote her thesis, there was no epoxy. And she wrote what should be epoxy. Today we have epoxy. So you've got a great tool, a great ammunition with you. And now there'll be nobody who can say but how can we do such a thing? We both did it in our times without epoxy. What all has to be done under the procedural aspect? Thesis Joshi will tell you. The substantive aspect would be the sensitization which is required to take this procedure forward. Because this is not just one criminal matter. It is not just one case. It is crimes against children. Now crimes against children begin before their birth and quite often they end with their death. We have female fetusite, infanticide. And then we have a number of cases like outrating modesty, abortions, illegal adoptions, trafficking, sexual abuse and a number of cases which we will deal with separately. They all come under epoxy when a child is less than 18 years old because she's a child in law. No matter how big she may look, or how big he may look. This also takes in the pedophilia, the sodomy, vizuality and all of those offenses which are against children, essentially which are sexual. They need not even be sexual, but mostly they are. So for such a topic, we require you to look at this aspect from a societal point of view. Having done that, we should know what is the procedure required for members of the society to bring this crime to light and to bring the victim to justice. Now therefore we will be dealing with victimology in this procedure. And there are various aspects of victimology which Dr. Salini Joshi will be telling you about. Having seen these, we will go further to in depth next time, sometime in the next week to understand the substantive aspects. This together would make the child rights. And next time we will be dealing with what are all those child rights which by today you would all be knowing, okay? So it is good to hear an author, a judge and a practitioner of the rights of children, Justice Joshi. Thank you, thank you so much, Justice Joshi and Delvi and Vikas for giving me this wonderful platform to address on the subject of child sexual abuse. The subject which is, you know, which has always pained me, troubled me, tortured me because while being presiding officer of the special court for atrocities against women as a session judge, daily I used to come across so many cases of child sexual abuse. And during that time, as Justice Delvi had said, we did not have any law to deal with those cases. Actually, neither the substantive law nor the procedural law. And that was the day period of the 1999, then 2000, up to 2000 Ilhay one. And therefore, these painful and torturous face faces of the children made me undertake the study on this subject. And as Justice Delvi has said, my thinking is on this very subject of socio-legal perspectives of child sexual abuse. And now after that has come into effect and I have written the book also. When we are talking about the children, India is considered to be, you know, the larger, to be having the largest child population. At least 42% of our population consists of the children below the age of 15 years. So one can imagine. I mean, so many young persons we are having and they being subjected to any sort of abuse. Especially when we are talking of the abuse, it is not only physical, it is not only emotional, but sexual abuse, which includes, and it goes beyond even physical, mental, emotional, everything, it is considered to be the violation of the innocence of the childhood or the violation of the childhood. And especially when child personifies the innocence and that very innocence makes the child vulnerable to the abuse, this subject is of paramount importance to not only the legal professionals who are working in this field or who are coming across such cases, but also to every parent because the reality shows that every child is susceptible to sexual abuse. I mean, this is something it was shocking even for the Supreme Court. When Supreme Court came across such allegation of child sexual abuse by a mother against the father of the child. And in the case of Satish Mehra versus state of Punjab, the Supreme Court itself says that some eerie allegations are labeled by disgruntled wife against her husband that of the child being subjected to sexual abuse. So to that extent in the year 1996 or thereafter also when this case was decided, there was lots and lots of disbelief and one may call a sense of denial against the existence of such phenomena like child sexual abuse. But it is a matter of concern that it exists throughout all the ages up to this time and it cuts across all the barriers of society. I mean, it exists in all parts of society where a ruler, urban, foreign, Western countries or Indian countries. The only difference is that in some cases like Western countries, it is acknowledge and I mean, there was a law or there is a legal procedure established for the same. However, in India, it was not so till 2012 when this act was enacted. We are having a legal legislative history behind enactment of this act along with the history on judicial side also. From time to time, the stock was taken and the Supreme Court was constrained to direct the legislature to enact such a law. At times the Supreme Court was also called upon to legislate on this subject which Supreme Court has declined it being the job or the prerogative of the legislature to do so. And now we are having this POSCO Act that is the protection of children from sexual offenses act 2012. It is the most comprehensive law, a self-contained code as we call it. And it is the welcome piece of legislation though it may be having like any other legislation it may be having some lecuna, some informatics but it was a long awaited piece of legislation. Initially when I was doing my work as a special court and thereafter writing my thesis, I used to come across only one or hardly any case, one case to case in the Journal of Criminal Law, Journal or Supreme Court cases. But now we know that not a single volume of Supreme Court cases or criminal law journal is free from these cases, reporting of these cases. To that extent there is an exponential growth or we can say increase in number of these cases. And as of today there are more than lakhs of cases pending in various courts in the whole of the country. So this problem is very, very serious one, very, very something which requires immediate attention and that's why the act was came into effect in 2012. The act was, I mean, you know, the basic foundation of the act or its roots and wings we will find in the constitution itself. Our basic law of the land provides for special enactment or special legislation for protection of children. Article 153 is very, I mean, the soul of fundamental rights in that sense as it enables the government to make special provision or to make special legislation for the children and women considering the vulnerabilities to which they are subjected, considering their innocence. There, you know, they are required to be protected so far as children are concerned. We are also having article 39 of the constitution which deals with directive principles of state policing and which also expect the state. I mean, you know, the government to ensure that the children are protected and spared from their exploitation and this is a variant they grow in the healthy and proper atmosphere. So article 39 which deals with directive principle of state policy and apart from that, I mean, this is the domestic law or the basic law of the land, but we are also having the child rights convention of 1989 which was adopted or ratified by India in 1992. It also mandates the state to enact the law which will protect the children from their exploitative use, inducement or coercion of the children to engage in any unlawful sexual activity to prevent the exploitative use of children in prostitution or other unlawful sexual practices and exploitative use of children in pornographic performances. So this act has not come out of any air or without any foundation, but it is having a very strong foundation in the basic law of the land and also in international convention that is the CRC. Apart from that, as I said, the act is also having some factual data of this and repeatedly the matter was coming before the Supreme Court in various decisions requesting the Supreme Court to take cognizance of the sexual abuse of the children and pointing out to the Supreme Court that yes, the law is not being sufficient and then Supreme Court directing the 56 law commission then 172 law commission to deal with this aspect. So this is on legislative side of the enactment of the act. Apart from that, as I said, when the act was to come on that statute book, the woman and child development department of the central government has conducted the study. I mean, they wanted some factual database to enact this law and that study was conducted in 2007 and which also conform and verify that several children are being subjected to sexual abuse but there was no law to protect them or to take legal recourse for their parents to punish the offender. It was also no peace that in most of the cases and that is again an agonizing factor that in child sexual abuse cases, the offender is not some stranger. His or she may be someone from the family itself. Maybe the family member, maybe the neighbor, maybe the teacher, maybe the, you know, Riksha Vala or so many. I mean, with whom the child comes in contact. We never allow the child to be in contact with stranger. We always insist whenever we are going out, we will ask the neighbor to look, neighbor uncle or aunt to look after or we will ask the child to be accompanied by someone known to the family. And that's very person. I mean, you know, commits the breach of the trust which is reposed in him by the child and the family. And therefore in more than 90% of the cases, the abuser is either some family member, some like uncle, brother, at times father also. The cases of incest are also very much. I mean, in large number, though they may not be reported in that proportion, but there may be neighbor, there may be school teachers, post teacher and so many. And but the problem was that our society being tradition bound and sex as a subject was taboo. We never discussed the sexual aspects of the case or anything with the child. We may just protect the child from physical abuse, mental torture, but we never consider sexual abuse as prevailing as such. And as a result, several children are falling prey to this abuse and the secrecy and mystery surrounds and there is a silence because family also does not want to acknowledge it. And this data was earlier brought out by various organizations like Samod from Bangalore, then Huck from Delhi and so many NGOs. Thereafter, the government itself conducted this study in 2007 and was convinced that we require some law to deal with these offenses. Not only as regards the registration of the offenses, but also to provide for commensurate punishment for these offenses and then most importantly to provide child-friendly procedures because it is a very important aspect of the criminal jurisprudence as such. Our entire criminal jurisprudence is accused-oriented, accused-centered, accused-focused. It was felt initially, I mean, when we were under the colonial rule that the accused, a single individual is pitted against the entire machinery of government which is represented by police. And therefore accused must have certain rights. Those rights may be fundamental or legal, but rights of the accused are required to be jealously guarded by the court. And as a result, the jurisprudence itself evolved in the direction of protection of rights of the accused. While doing so, the victim side was totally ignored. And as a result, when the child came into a picture, we first had juvenile justice act for care and protection of those children who were alleged, who are alleged to have committed an offense. So that act was enacted, I mean, in the year 1986 itself. So child as an accused, child as an offender and his interest to be protected special machinery for protection of the interest of such rights was provided in the year 1986 itself. But child as a victim of that too of a serious offense like sexual abuse, that act was not there till the year this act, I mean, 2012. This child doesn't have to deal only with the equation of accused versus victim, but child has also to deal with another equation and that is a child versus adult. Because our entire machinery of criminal law, whether police station, whether courts are always, you know, adultery entry. We never expected the child to come before the court or to the police station, either as a victim or as an accused. And therefore naturally we are having the raised platform in the court, the witness box, accuser cage. So everything, you know, wherever, I mean, whatever was necessary, everything was done taking into consideration the needs of the accused adult witness, adult accused, adult victim and never in case of child victim or child witness. And that lecuna in the law is now being tried to be fulfilled by this act. So this act in that particular, in that context is really a comprehensive piece of legislation, a long awaited piece of legislation. Apart from that, it expects, I mean, you know, all the police machinery, then the state machinery like NGOs, government officers, police officer, justice delivery system, everything to work in coordination with each other as collaborators for paramount consideration of the child victim. That is his best interest to be protected. And this is something, you know, like multi-stakeholder system which is provided under this act. And that we will see in the course of our session through the various provisions. So when we are talking of this act, we have to remember that it was a long awaited law and act has tried to fulfill the requirements and it tends to fill the lecunas also. The act, as I said, came into effect on 1411, 2012. And thereafter, I mean, the study was conducted in 2007 but by the time it was legislated and came into effect, it was November 2012. The rules were also framed along with the act in 2012 but thereafter those rules were abolished and now new rules have come into effect in 2020. Act was also amended in 2019 to enhance the punishment for the penetrative sexual assault, aggravated penetrative sexual assault. It was in tune with the demand of the time after coming across the various cases pertaining to child sexual abuse and assault and very gruesome cases, we all know those cases so I may not state them. Therefore the amendment came into effect on 168, 2019. Under section 39 of the act, state is enabled, government is enabled to frame the model guidelines and those model guidelines are also enforced. So the act is not only a standalone piece of legislation but it is for aberrated, supplemented with the details rules framed into 2020 and also the guidelines and one schedule. If we generally see the scheme of the act, we will find that it is divided into nine chapters. 46 section only. So it makes them all at comparatively and only one schedule of the act. But as I said, act is per quote, is giving a lot of scope to protect the best interest of the child and that was the very objective of the act which says that to protect the best interest of the child throughout the process, judicial and investigation process at every stage of the process. I mean, this is a very wonderful thing to look after and care for the child not only at a particular stage and it also says that to protect the child from offenses of sexual assault, sexual harassment, pornography and provide for establishment of special court and that is the object in short of the act. As I said, it is having only nine chapters. Out of them first chapter deals with the definitions and second chapter defines the various sexual offenses. Chapter three deals with use of child for pornographic purposes. Chapter four deals with abatement and attempt of commission of these offenses. Chapter five is a innovative one, radical one that is dealing with mandatory duty of reporting of such sexual offenses. Then chapter six deals with special procedure for recording the statement of the child by police and magistrate. Chapter seven deals with establishment of special courts. Eight deals with procedures and powers of the special court and nine deals with miscellaneous provisions. So very, as I said, a very small act but it addresses all the issues which remain to be addressed till then. Which are the key features of the act or salient features of the act. The most first and foremost which I can recall is the act gender inclusion. I mean, earlier when you used to have that sexual offenses, they were covered only under rape that is 376 of IPC and violation of modesty that is three section 354 of IPC. These were the mainly two offenses which were dealing with sexual offenses. And both these offenses were in respect of, I mean, wherein the victim was supposed to be the woman only. I mean, they were supposed to be committed only against the woman. So far as male children, male persons are concerned there was no such offense recognized under the IPC. And it was noticed and was revealed from the study also that it is not only the female children who are subjected to sexual abuse but even the male children are also not spared from the same. And the statistic again is very agonizing about it. But male children, they don't know how to disclose whom to disclose. And earlier there was no legal provision under which the parents can lodge the complaint. And therefore the special, I mean, significance of this act is that the definition of the child as given in section 2D of the act is gender-inclusive. What it says, any queer child, any person who is below the age of 18 years. So the word persons necessarily signifies that it includes both a male and female person. Therefore any sexual assault abuse of male children also stands covered now under the act. Not only the male and female children but now even transgender children or gay, lesbian or all the children, whosoever may be, they also stand covered under the definition of the child because any person and they also constitute a person. Now, the real controversial issue about the definition of child under this section 2D of the act was it has enhanced the age of the child from 16 to 18 years. Under the rape law under 376, you know, below 16 was considered to be the age in the sense that above 16, if there was consensual sexual relations, they were not constituting the offense of rape. Now what has happened, even consensual relationship between the teenage children up to the age of 18 years are also brought under the purview of the act. And as a result, there is no such exemption, exception, even when the child, girl child is maybe 16 years or above 16 year and male child is around 18 years, even if they are in romantic relationship and having the love affair and after falling in love, they had sexual relations even then, you know, if any party or their parents wants to complain or not approving of their relationship, that sexual relationship will come within the purview of this act and it will be punishable as such. This is one more area of concern under the act. What has happened is there are several such cases of romantic relationship where the girl and boy has run away from the home and their parents not approving their relationship have lost the complaint. Therefore, the special courts are now flooded with these cases also because the age of consensual sex is now increased to 18 years. That is one more aspect which I mean repeatedly the judgments are coming. And last week also there was one judgment wherein the court wherein the direction was given to the government to consider this aspect to reduce the age, maybe there are pros and cons of 16 to 18 years. I mean, you know, whether the consent was free or not whether it was a sort of grooming of the child and therefore the consent was obtained by way of persuasion. So various angles are there but for the present we have to remember that now child means any person below the age of 15 years. There is another aspect also so far as definition of child is concerned and that is in respect of the mental age of the child. We have seen that several mentally challenged children are subjected to sexual abuse because they are neither in a position to understand the sexual abuse nor in a position to resist the same. In several shelter homes such cases are coming to light where the biological age of the child may be about the 18 years but mental age may be much, much below 6, 7, 8 years. In these children however, unfortunately are not covered under the act. A plea to cover these children whose mental age may be below the age of 18 years the biological age may be above the 18 years. The such plea was filed before the Supreme Court in the case of ERA versus state of in city Delhi 2017, volume 15, SSC 13. It was argued that such mentally challenged child or special child requires the protection of this act because vulnerabilities of such child are far more than even the child whose biological age may be below the age of 18 years. But then the Supreme Court says that this area Supreme Court says that legislative intent does not appear to be to include those children whose biological age is above 18 years. If it was the intention of the legislature, would have said so explicitly. As legislature has not done so, Supreme Court left it to the legislature to consider whether such children whose biological age is above 18 years but mental age is below 18 years should be included under the act or not. So the position which stands as on today is that such children are not included under the act. So far as the definition of child under section 2D of the act is concerned, these are two important issues. One is raising of consensual age of consensual relationship, sexual relationship and another is not included, not including the children whose mental age is below 18 years of age. Now, this is one aspect of the act which is gender inclusive and that is really a radical shift from the existing laws. And that was the requirement of the time. So it was long felt and necessity also considering that made children are also susceptible to sexual abuse. Another important feature of the act is it recognizes all forms of sexual abuse. I mean, earlier, as I said, there were only two sort of sexual offenses, one violation of modesty and another rape. And both of these offenses were falling short to cover those sexual abuses to which children were subjected. I will give you just one case that was a state of Punjab versus nature scene, air 1967. And in that case, air 1967, Supreme Court page 63. In that case, what has happened was child of seven months and seven and a half months was sexually abused in the sense that finger was inserted in the vagina of the child. And it has resulted into serious injuries and damage to the internal parts of the child, not only vagina, but other internal parts of the child also. Now, the question arose whether inserting a finger or fingering in vagina would amount to violation of modesty or rape. Because rape, necessarily, what was the definition of section 376? It necessarily contemplates, penile is the penetration of the vagina. Here, there was no penile penetration, but only finger, somebody partly finger was inserted. And therefore police said that it is not an offense of rape. Police filed charge sheet under section 354 of IPC. Remember for rape, the offense was minimum punishment, was a minimum seven years imprisonment for violation of modesty under section 354, only three years maximum. Otherwise also the gravity of the offense stands reduced when the accused is prosecuted for the offense of violation of modesty. Interestingly, session court convicted the accused of accepting 354 as an offense. High court acquitted, the matter came before the Supreme Court. Now the question arose, various arguments were advanced that child was sleeping. So another is seven and a half months old child cannot have a sense of modesty. So how can one violate the modesty? Then secondly, if the child was sleeping, there is no question of child having the sense of modesty and such modesty being violated. And thirdly, that we cannot say that every female child is possessing the modesty that is to general a statement. So all these three different opinions were given and ultimately, I mean, third opinion was that it was the intention of the accused which is a paramount importance and having regard to that intention, it has to be held that accused has committed the offense. So by majority of two, it was held that 354 was proved but there was a minority opinion holding that there was no violation of modesty. What I'm trying to stress upon is that the substantive law under which the accused can be brought was not adequate. Like rape, the definition was very restrictive, only penile penetration, not any other body part inserting of any other body parts in the private part of the child. Whereas the definition of violation of modesty was riddled with obscurity and also having some moral overtones. So this was the position till 2012 when this act was enacted because CRPC was amended in 2013. After this act to remove the definition of rape and to include the definition of sexual assault, et cetera. But this was the first act which removed both the rape and violation of modesty, both these terms from the statute book and they introduced the term sexual assault and penetrating sexual assault, non-penetrating sexual assault. This act tries to cover all kinds of sexual abuse. It may be real, virtual, it may be penetrative, non-penetrating, it may be homosexual or heterosexual, it may be verbal or physical, it may be sexual or brutal also. So whatever form of sexual abuse to which the child can be subjected now stands covered under the act. And I said it has consciously avoided the use of both the words rape and violation of modesty. Now the act has categorized the sexual offenses in three categories classified them. First is sexual offenses involving physical contact but not the penetration. So those offenses which are without penetration but there is physical contact that is called as sexual assault. And it is covered under the provisions of section, seven of that, that is sexual assault. Whoever touches the vagina, pennies and breast of the child or make the child to do so is covered and that he does so with sexual intent is said to have committed sexual assault for which punishment is three years, not less than three years but up to five years. So sexual assault is non-penetrative but any actor done with sexual intent. Another category of sexual offenses is involving penetration. So which may be called as penetrative sexual assault and it is defined in section three of the act. So it includes penetrating vagina with pennies to any extent or when inserting pennies in mouth, urethra or anise of the child or make the child to do so, inserting to any extent any body part, fingers, et cetera which we have said earlier or manipulating any part of the body of the child or applying mouth that is oral sex, et cetera. The punishment for these offenses, not less than seven, 10 years but which may include the imprisonment for life. So this is an penetrative sexual assault. Another, I mean, you know, form of offense which is recognized under this is aggravated penetrative sexual assault. So aggravated sexual assault and also aggravated penetrative sexual assault which are those cases where we can call that there is penetrative assault or sexual assault which can be called as aggravated. When such sexual assault is committed by certain persons like someone in charge of the hospital, someone in charge of the schools, someone in charge of the shelter homes, someone in charge of, you know, the place where children are kept or where children are in custody as good as such persons. So when the offense is committed by such certain specified persons or when the offense is committed under certain circumstances, like, you know, the child is kept in the shelter home or child has gone to the police station and the police person has committed or the army man has committed or when there is a gang rape. So at certain situations, certain persons when the family members commit the offense, when someone known to the child commits the offense or when the gang rape is committed or when, you know, the child is as a result of the sexual assault, the child becomes pregnant where the child is sexually assaulted by giving threats of, you know, corrosive substance or some weapon or arms. So in all these cases, when the certain, you know, there are given various 23 situations wherein the sexual assault or penetrating sexual assault becomes aggravated. And so when the offense is committed by certain persons like police, army, in charge persons of shelter homes, school, et cetera, then it becomes aggravated. And if it results in pregnancy, gang rape, et cetera, et cetera with the weapons and other things, then also it becomes aggravated. The punishment is accordingly enhanced for these offenses. And therefore when there is aggravated penetrative assault, the punishment is minimum of 20 years and maximum life or death depending upon the fact situation. And this penalty of death was introduced after the amendment in 2019. So the act is important in the context that it recognizes all sorts of sexual offenses. The offense may be subtle, may be brutal, as I said, sexual assault. And then it also further provides for other, provides for alternate punishment, which is called as, you know, if the offense is one, which is used, also comes under the IPC and also under the POSCO Act, then under which law the accused can be punished for maximum punishment, that punishment is to be awarded. That is section 42 of the act, which is also an important aspect because normally when the one act constitutes an offense under two different statutes or law, then the lesser punishment is to be given to the accused because we were always having our criminal jurisprudence is oriented towards protection of the rights of the accused. But this act is departure because section 42 specifically provides that the punishment, which is larger, more is to be given and not the lesser punishment. There are other offenses also covered under the act and those offenses are of sexual harassment, which do not involve physical touch. I mean, these are offenses without physical contact. We all know the sexual harassment of women at workplace. So there the sexual harassment is defined under that act of 2013. Under this act also, the sexual harassment constitutes a different offense and it is defined under section 11 of the act. As I said, it doesn't involve the physical contact and therefore uttering any words, making any sound or making any gesture, exhibiting anybody part, object with intention that such word or sound shall be heard or such gesture or object shall be seen by the child or making the child exhibit any his body that is making naked the child or showing any object to the child in any form for pornography purposes, repeatedly constantly following the child, et cetera. All these six acts which are done with sexual intent, but which do not involve the physical contact are now covered under section 11 of the act which deals with sexual harassment and they are punished with imprisonment for two, three years. So as I said, nothing remains now beyond the scope of this act. Whatever whichever act done with sexual intent is covered under this act. Then separate chapter is introduced in the chapter three which deals with use of the child for pornography purposes. I mean, the child maybe pornography material is stored where in the child is used that also amounts to an offense. And what is pornography in the defining section to be a of the act. And this is an amended amendment made in 2019. So what is child pornography? It means visual depiction of sexually explicit conduct involving a child which includes photograph, video, digital or computer generated image. And under the act that is section 13 of that when the child is used for preparing such pornographic material and such material is stored then it becomes an offense and it is liable for punishment. And especially so far as media persons are concerned I mean, the act is making a special provision for the same. Then chapter four of the act it deals with abitement and attempt to commit any of these offenses. I mean, that is also independently covered. Otherwise in other laws we have to take recourse to section 511 of IPC for attempt to commit offense or 109 of IPC for abitement of the offense. But act is a self-contained code. It also deals with the punishment for any person who abits or attempts to commit such offenses. So in that case, the act deals with sexual offenses it's abitement, it's commission, use of the child for pornography, sexual harassment. And in addition to that there are three more offenses under that for which punishment is provided which we will deal with subsequently. So far as this fee provision is concerned as I said, it is a very important provision. I mean, this is an important feature of this act that it deals with all sorts of sexual offenses in respect to which the child may be subjected as a victim. Act also provides less than everywhere it says not less than. So no more judicial discretion, no more we can say that, okay, the facts of the case do not warrant us to impose less. I mean, you know, minimum punishment less not less than three, not less than seven, not less than 20 years or so. So very strict provisions of regards the punishment are made under the act and it has helped to achieve uniformity also because in the earlier what used to happen under section 376 sub plus two or five p.c. For sufficient and you know, especially sufficient and reasonable reasons the court could adequate reasons the court can reduce the punishment to less than minimum but now that discretion is no more. And it becomes a problematic area wherein there is teenage relationship as I said both the children are below the age of 18 years or she on the 18 years and each 20 years and in love in that case also if it has resulted into pregnancy of the girl then the minimum punishment provided under the act is 20 years penetrative with sexual assault aggravated penetrative sexual assault. So this is an area of concern but otherwise in cases where there is really the sexual assault sexual abuse of the child then his punishment was a longstanding demand strict punishment. So uniformity of sentencing is another feature that also warrants that the fine should necessarily incorporate the part of punishment. So every offense, every punishment must be you know, not only of imprisonment but also of fine and fine must be just and reasonable to meet the medical expenses and rehabilitation of the victim. So this is another area which provides for compensation of the victim child to which we may come subsequently. Needless to say that all these offenses being of a serious nature, they are cognisable and non-malleable. The actor doesn't specifically contains any section to that effect having rebut to the punishment imposed for the same. It follows that these offenses are non-malleable. Act also, I mean very important and unique feature of the act is mandatory duty of reporting. We never had such provision under any law. This is the first path breaking legislation wherein every person is cast with a mandatory duty of reporting. If to his knowledge, such sexual offense has been committed or even when there is apprehension of commission of such offense. So not only after the commission but apprehension of commission of such offense. So it is a mandatory duty of reporting. In Western countries, this duty was there. I mean, it was cast on specific persons like, you know those who are likely to come across such incidents maybe media persons or otherwise. But POSCO Act has made this provision for the first time. So it is a duty on each and every person to report the commission or apprehension of commission of any of the offense under the act. Failure to report is bringing, as I said one of the offense, some other offenses and that is an offense failure to report because it is mandatory and hence non-reporting when I have knowledge. Like school principal is having the knowledge that sports teacher is committing sexual abuse. Child has complaint but if the school teacher has principal has not taken action then it becomes the breach of mandatory duty of reporting. So if the knowledge is there then reporting is a must. Failure to do so invites six months punishment and fine. So another offense in this context is every police person who is informed about this offense or the report is lodged, he has to register that offense. If it is not registered, it also amounts to a failure of this mandatory duty and therefore it becomes punishable with six months imprisonment. Therefore, both on individual and also on police person there is a duty for police person to register the offense and for other persons to go to the police station and lodge the report. In the judgment of Shankar Kishan Rao Khade versus state of Maharashtra, 2013, five Supreme Court cases, page 546. 2013, five Supreme Court cases, page 546. Supreme Court has given directions for person in charge of schools, special homes, children home, media personnel and hospitals to take seriously about this provision of mandatory reporting. Why it was felt necessary? Because children find it very difficult to disclose about the sexual abuse. They are not only vulnerable but they have their own limitations. They may not find it comfortable to state something which is done in secrecy, privacy. And sometimes on account of the grooming, the abuser takes the child in confidence, tells him not to disclose about it. It is our shared secret. And if you disclose it, I will not give you the gift. I will not pamper you. I will neglect you. And that may be the part of grooming or child is too afraid or child is lacking the vocabulary also to disclose about the same. So disclosure of such offense is very, very difficult. If someone comes to know about it and then discloses, then the child will get the help immediately, medical assistance, legal assistance and that will stop the recurrence of this or repetition of this offense and therefore the provision of mandatory reporting, duty of reporting. It has resulted again, as I said, this is a new act. There are several gray areas reporting, mandatory duty of reporting has also some consequences. Like child may not be prepared for it. Child doesn't want to disclose it. Child's sense of privacy and confidentiality are also in question. And in that case, we know till our judicial system, our investigation system improves and child is brought to the court to state something about the incident which child doesn't want to, especially when this incident is or abuse is done by the family member, then that is also having some significant consequences. So we have to wait for time to know whether this provision is really in help of the child or otherwise, but this is an important part of the provision under this act. Then we are also having some mandatory provisions or presumptions under the act, which is again a radical departure from existing jurisprudence, criminal jurisprudence or existing evidence act. Section 29 and 30 are of important in this aspect in the respect of the presumptions. They are casting a reverse burden or proof because we know that entire criminal offense, entire burden lies on the prosecution to prove the case against the accused. Even if accused doesn't open his mouth, or doesn't open his defense, he may not be at loss because it will be the prosecution. It is for the prosecution to prove the case against accused beyond reasonable doubt. But the legislature recognized that so far a child is concerned. I mean, you know, there are several difficulties to record the evidence of the child and for child to state that this particular act was done by the accused with sexual intent because child is too small a person to state that accused had some sexual intent. All of you might be knowing the case of Rupam Bajaj versus KPS Gill, wherein the question arose whether giving a pat on the posterior portion of a woman amounts to violation of modesty or not, whether it was done casually or whether it was done with sexual intent. So sexual intent is something difficult to prove. If the child is made nude, if the child is asked to remove the clothes, if child is asked to exhibit certain body parts, whether the child can say that it was done with sexual intent. And therefore, section 30 of the act says that there shall be presumption if the act is proved, then it will be presumed that it was done with sexual intent. So mainstream as such, what is sexual intent is a mainstream that is guilty intention that is presumed under the act and it will be for the accused to revert that presumption. So the act has as I say, it made a radical departure from the existing legal provisions. Now any act like this defined under the act is done and it is proved then it will be presumed unless contrary is proved by the accused that it was done with sexual intent. So section 30 is to that effect. The more serious, I mean more interesting provision is section 29 of the act, which is again deals with the presumption and it says that any person, if any of this person is prosecuted for the offense of punishable under section 35 and seven and nine of the act that is sexual assault, aggravated, penetrative, et cetera, then it will be presumed that he has committed an offense unless the contrary is proved. The word is used is shall so it is a mandatory presumption. Now the question arose what the word prosecuted means whether mere filing of charge sheet is sufficient, whether mere framing of charge is sufficient at which stage the burden will shift upon the accused. And that was the question. I mean, when this presumption will be triggered and this question has engaged the attention of the various high courts and all the high courts so far, including our Bombay High Court, including Kerala High Court and several other high courts in various of this Calcutta High Court in the case of Sibrato Biswas versus state of West Bengal, the decision dated 11, 6, 2019, then Kerala High Court in the case of Joy versus state of Kerala in the decision of 2019, SSC Online, Kerala 783 and the Bombay High Court also in the decision of Navin Bariya versus state of Maharashtra, 2018 criminal law journal 3393 has again fallen back to our old criminal jurisprudence and has said that the burden prosecution will not be exempted from proving the foundational facts. So the prosecution has to prove the foundational facts that is the incident has happened. It was the accused who has committed such incident or act and then only the presumption will be triggered. So not merely on prosecuted means after the entire trial at the time of judgment, we will see whether the accused has reverted that presumption. So it is like any other presumption whether under section 106 of IPC or 113 of A of Evidence Act or 113 B of Evidence Act. So it has become now like any other presumption which we have to consider at the time of judgment whether accused has reverted that presumption that he is no more the innocent. So section 29, which was intended to state that whenever such act is alleged or accused is prosecuted he shall be presumed to have committed an offense unless contrary is proved is now reducing its significance. Now let us see what Supreme Court has said because still today we are waiting for the decision of the Supreme Court. The first, the next provision made under the act pertains to making the trial of these offenses speedy and time bound. I mean speedy because the state evidence of the child victim is to be recorded within 30 days from the date when the court takes cognizance. And entire trial is to be completed within one year from the date of taking cognizance. So within one year everything has to be completed. That is the object of the act having regard to the far reaching impact such incident has on the child psychology, child's life, child's future, career, school and everything. And therefore at least the evidence of the child because in evidence child has to repeat everything. So whatever the incident, traumatic incident with child has tried to forget. Now child has to remember it again and again at the time of giving statement before the police at the time of giving statement before the magistrate and again in giving evidence before the court. That drama should be spared at least at the earliest occasion it should get over. And that was why these offenses are now made, I mean trial for the same is now made speedy and time bound. So unless the reasons are recorded the court cannot extend the time for trial of these offenses. Unfortunately, however, establishment of special court which is again the mandate of this act has not redeemed the situation because every district is having one special court and now all the district courts are flooded with these special courts are flooded with these cases. So Supreme Court has in the latest also last year given direction for establishment of more courts at every district because several cases are pending beyond the period of one year. And hence in practicality it is rather getting difficult but yes, the act, the legislature has made it mandatory to have that case decided within the time bound manner. Apart from these substantive laws relating to the offenses, their punishment, presumptions, I mean these were necessitated, they were long awaited but the most important feature for which this act is of paramount significance is the child friendly procedures provided under the act. We will be dealing on these aspect in the next session more but I will just cursorily deal with this because establishment of child friendly special court necessarily contemplates that child is not to be brought in the regular court where the judge is sitting on the raised platform and there is witness from the witness box child has to give evidence but it contemplates establishment of the special place chamber where the evidence of vulnerable victim can be recorded and that is the Supreme Court has also directed in the judgment of Mahendra Chawla versus Union of India and state of Maharashtra versus Bandu 2018 11 Supreme Court cases 163 for establishment of at least one center for examination of vulnerable witnesses. Though these special court should have a special arrangement for recording evidence of child witness and such evidence of child witness is to be recorded as we will see in the session of Justice Dalvi either in the chamber or at a place where no outsider can have the entry. So when we call only in camera trial which is mandatory in these cases in camera means at a place where the entry of the public is restricted because our courts are supposed to be the open public place open courts where anyone can come in but these trials in cases of sexual offenses are to be conducted in camera where the identity of the victim is to be guarded strictly not to be disclosed by anyone and identity of the child not only means his name his or her name but also the name of his family the place where he's residing that is his address the school in which he is going any fact which may give rise or which may give indication about the identity of the child is required to be strictly omitted both in the charge sheet in the police paper in the court papers in the judgment everywhere because the act is enacted to respect the child's right to confidentiality and privacy and that right is required to be respected by everyone including the media and therefore the media is also restricted from and there is a special provision under the act which mandates that media should not print media electronic media any social media should not disclose the identity of the victim because that is going to affect his future and his self-respect and dignity his privacy this act is child rights based so the entitlements I mean whatever provisions are made under the act are not some favors given to the child but these are the rights and entitlements of the child and every stakeholder, beauty holder under the act is required to guard these entitlements to protect these entitlements to safeguard these rights if he doesn't then he's liable for punishment so if the media discloses the identity of the child media is liable for punishment under the act and thus this is an important aspect of the provision of this act apart from that we will find that under section 33 of the act the child is entitled to get assistance of the experts, interpreters, translators special educators, especially in case of mentally challenging children those children who are unable to communicate for them also special educators at the time of recording their statement by police by magistrate and also by the court during the evidence then there is also mandate that woman police officer not below the rank of serve inspector is to record the statement there has to be a special juvenile police unit to take cognizance medical evidence and medical treatment is to be provided fourth with and if the victim is a female then medical officer also has to be a female another I mean key provision made under the act is the assistance of support person I mean in civil matters we used to have the provision of guardian atlithm or the next friend whenever the child has to file a suit but there was no such provision under CRPC now this CRPC I mean this act has made the provision for appointment of support person so that support person maybe the parent of the child maybe someone from the family or NGO voluntary organization any person in whom the child is having the confidence and trust that person is to be in form of all the progress made in the case date of hearing or bail application even the hearing that person is to remain present in the court when the evidence of the child is to be recorded so to protect the interest of the child who is unable to do so for himself or herself now the appointment of support person is of importance then the act also provides for right to access documents and information I mean court or police you don't get the information easily available but this is provided under the act at the time of recording evidence so the cross examination or examination in chief of the child is not to be directly conducted by the public prosecutor or the defense counsel but the presiding judge will conduct it expecting that the harsh treatment which is given in cross examination to the witness can be avoided especially when he is a child witness so questions relating to character assassination or aggressive questioning is to be strictly avoided then child is to be given frequent breaks in recording of evidence not to be called repeatedly not to be seen by the accused or the child is not to see the accused during a recording of evidence there should be one way mirror or screen or all these things are provided under the act itself which we will be dealing in the next session of Justice Dalvesh will elaborate thereupon how the sensitization in this respect is of importance another aspect which as regards victimology is concerned which I would like to highlight is the legal assistance which is provided to the child victim as of right otherwise under our existing law the victim was not given any legal representation the victim was to be represented by public prosecutor only and not independent legal counsel but this act provides for such legal assistance legal right to represent it and if the family or child is unable to afford their own counsel then legal services authorities to provide that so this is again an important provision apart from the provision for appointment of special public prosecutors expecting that there should be special judge who is sensitized to these matters and special public prosecutor also so that these matters will be handled in the way we expect them to be handled so you know and last provision which I would like to highlight during this limited time is of the compensation for the purpose of rehabilitation of the victim I mean under previously awarding of compensation was purely discretionary now under this act the fine amount is to be given to the victim for rehabilitation so and as I said fine amount has to be just and reasonable having regard to the resources required for the rehabilitation of the child and section under the act it is mandated that compensation has to be provided either from the victim injury compensation fund which is to be established by every state government if the accused is unable to provide for the same and Supreme Court has in the judgment of Nipun Saxena versus Union of India 2019 1 in number 313 Supreme Court cases 719 given direction for establishment of such injury compensation fund from which the compensation is to be provided it is a must now apart from that there is provision for interior compensation also because after the cases decided giving compensation will be too late in some cases so immediately after the filing of the cases so when the victim really requires some financial resources such interior compensation can also be given from time to time and that is also mandated under the rule 9 sub law 6 of the act so this is something judicially it was recognized in the case of Bodhisattva Gautam versus Ms. Subra Chakravarti Air 1996 Supreme Court 992 Supreme Court has recognized payment of interior compensation thereafter in the judgment of Ankush Sivaji Gaikwad versus state of Maharashtra 2013 6 Supreme Court cases 770 Supreme Court has again made it mandatory for the court to grant such compensation but now legislatively now it is mandatory for rehabilitation which is important that is for providing vocational training also for pursuing the education also for having some residence also for all these aspects now the compensation is necessary and is mandated and there has to be a judicial application of mind for awarding of this compensation so the act is as I said on legislation on paper it is very very comprehensive it is very a welcome piece of legislation a long-awaited piece of legislation so for a children who are unable to speak for themselves and hence the necessity to have someone speak for them and to spare them from the trauma to spare them from the entire rigorous process of undergoing this investigation and trial stages it was a must act and the legislature has fulfilled the demands there may be certain legulums as I said certain grey areas certain controversial points also which will be cleared in the course of the time on judicial side but for the present it is filling the vacuum which was in the legislative field and it is providing the child friendly procedures however since it I charge can use this provisions and in no way to their own that we will be dealing in the next session by Justice Roshan Dalvi but the bare provisions of the acts the substantive provisions of the law which deal with this subject I have dealt with and I think I will stop here because I find lots of queries being made on the on the chat and therefore I would like to answer those queries and have interaction with you thank you so much over to Vikas sometimes the command of muting the lawyer is with the in the virtual courts not with the judges but the staff can be you have actually taken the entire insights yes there are some situations and some takes also interesting there are too many chats that to scroll up meanwhile I will take which we normally top off and probably in one of the sessions Justice Roshan Dalvi also said what is the good touch and a bad touch which we normally correlate with this act yes it is difficult for the child to state that this was a good touch or this was a bad touch so why to cast this onerous responsibility on the child to state that it was a bad touch or it was a good touch why not spare the child from that so you know earlier there used to be this concept of good touch and bad touch in the sense that child will feel uncomfortable that touch with which the child will feel uncomfortable that will be called as a bad touch but as I said in the case of grooming grooming where you know where the child is taken into confidence, child is told child is showered with gifts praise her and child is convinced that this is our secret don't tell anyone that child may not understand that it was a bad touch sexual activity which was done with the child was a bad touch but it was a sexual offense and therefore now there is a you know thinking or there is some on this line it is said that we should not burden the child with the responsibility of saying it is a good touch or it was a bad touch we will decide and therefore section 30 of the act which says that if any of these acts which are given in section 3, 5, 7, 9 of the act like touching or physical involving physical touch or otherwise then they will be presumed to be done with sexual intent so the child doesn't have to say that whether it was a good touch or it was a bad touch but yes from family point of view, from society point of view you must make the child aware of these things that if anyone's touch make the child uncomfortable then the child should report it that is creating awareness about the existence of prevalence of this phenomena and for that extent you should I mean every parent, every family, every school should make the child aware that any touch to your body of which with which you are not comfortable with which you find something wrong then please report it take the child in confidence that is the duty of the family and every school also not to ignore, not to say that it is nothing how he will do it like this because now we know that even family members also subject the child to sexual abuse so don't disbelieve the child believe the child make the child aware that these things also happen and therefore report to me in that context good touch and bad touch as you see and therefore as I said any touch which makes the child uncomfortable that is a bad touch in one of the sessions I attended it was said that normally wherever the private parts are normally covered so that's a bad touch and which are exposed to normal human being in the open it can be a good touch as such though the expression would always touch but in that case you know only private parts but the lips, cheeks are open and they are also touched in a otherwise manner with sexual intent it also becomes a bad touch child may not know so if anyone cheeks, lips are touched that also becomes child making and uncomfortable but you know like doing this to the child that is something you know not good for child not feel comfortable so child should be able to report it and we should be able to stop it so covered body parts in addition to that that touch which makes him uncomfortable Arun an 18-year-old boy accused of raping and impregnating a minor the girl was granted bail by the court after the DNA test proven innocent the boy spent 35 days in this process the court had demanded the boy in judicial custody on July 22 under the box correct the girl had alleged that the boy had raped her while she was on her way back while the boy kept on denying the charges and said he was innocent which led the officials to conduct a DNA test to ascertain if the boy was a father the boy was charged under the relevant Indian penal code led with boxo he was released on Saturday from Thirur sub jail I'm innocent in this case and very happy that the truth came out he said the family is happy because these are the facts of a particular pending I am also seeing that you do not blame them that's true and the matter could be subreddit normal question could be once you have found innocent is there any compensation awarded against the government or judiciary or punishment to the false accuser in such like cases where you are ultimately acquitted so far as false and malicious Roshan Dalvi ma'am also can supplement that yes so far as false and malicious prostitution is concerned there is a provision for compensation if it is proved to be false and malicious may be separate proceeding but yes there is a provision for compensation and I would request justice Roshan Dalvi to supplement that is the very right answer it is one thing to get acquittal it is another thing to then prosecute for malicious prostitution because if it was malicious and then you have been acquitted then you have to prove how it was malicious what was the malefights involved and that could be a separate trial otherwise you are acquitted what are the causes of CSO where is the data and scientific analysis correcting the root cause what are the causes of? CSO what is CSO? Child sexual offence yeah causes of child sexual abuse is easy accessibility of the child that is one cause may be another cause may be vulnerabilities of the child the child will not understand also and you can satisfy your sexual urge with the child there is something called pedophiles who enjoy having sex with the children that is also one aspect previously we used to have this concept of having sex with the child or virgin improves your virility or whatever it may be or fuels you from sexual what you call as some sexual but in each or sexual diseases so there may be several concepts but ultimately it is sexual urge secondly dominance secondly that phase of enjoying and the possibility of being caught is less if you commit such offence with a grown up girl, grown up lady then immediately the complaint is lost that and then it becomes an offence you are caught but so far each children are concerned they are not in a position to disclose us so the abuse can take place for days together it is not a singular act one time act but it is repeated over time as and when you feel because child is in your home or child is easily accessible child is in school and these are the various reasons and we never make the children aware of such sexual act which can be committed sex is still considered to be a taboo subject surrounded in secrecy and therefore there may be these may be some of the reasons and technology advancement in technology has given a lot of exposure now the teenage children want to experiment sexually interment experiment it is easily available child is easily available their sexual urge is also enhanced because of seeing the pornographic material or obscenity scenes which are easily available on social media TV, everything so there may be several causes we cannot pinpoint one particular cause for the sexual offenses you are in the bird eye view what are the basic trigger points in aware the alienated parents struggle to meet their own children in the so-called family courts will it be able to prevent such abuse of their own children because of the denial of excess by order or by hostile parties what are the preventions prevention for not allowing the child to meet or prevention for what he says that in such like cases there are more chances of sexual abuse for the child how can it be stopped because when the both the parties are hostile to each other because of the relationship there are certain I mean both the possibilities are there sometimes it is said that delegations are made just for the sake of it to get the divorce sometimes the allegations are very serious so the family court has to assert whether there is a substance there is possibility there is probability of such sexual offense of the child taking place if given in the custody of the other parent then the family court can will not give the custody or access to the other parent if there is you know the allegation there is no substance in the allegation then family court may give it it depends upon the particular facts of that case sometimes you know family court has to ascertain from the child also family court has to ascertain from the you know everything pleading and all the things thereafter the child can be given supervised access you know someone will be present not overnight access to step by step the family court will go on giving that depending upon the nature of the allegations depending upon the substance in the allegation and finding the overall situation so if there are other family members and child is comfortable with the father then the court may say that no we will try it on an experimental basis so it depends upon the particular facts of that case here let me have taken let me check it on the YouTube what kind of remedies are given to the victims' children under the boxlet we have already seen the remedies under the post-coact the child can immediately lodge the complaint along with his parents or support person the affidavit will be arrested caught and everything and then tried for the offense the safeguards are provided as regards reporting of his statement in the in his residence not at police station the safeguards are also there that he should his evidence to be recorded in camera and not in court so various safeguards are there for his immediate medical treatment medical assistance legal assistance so the remedy which the child is to disclose about the incident or if someone comes to know about it will disclose about it yeah so thank you ma'am for giving us the insights and next week we will be connecting and we will update the date on the social media to the effect where we have the substantive law and it was a pleasure connecting on a different topic but reliving the memories as to how we got connected on this virtual platform so thank you everyone stay safe, stay blessed and we are thankful to Justice Shalini and Justice Roshan Dalmi for spending the time and to share their knowledge beyond the judicial academies and beyond the own spheres for the public at Lajj we are all grateful to you thank you thank you so much