Compoundable and Non Compoundable offence in India

Introduction

Lawmakers classified offence into three categories on the basis of their nature, taking the reference of policy-making. These categories are: Firstly, cognizable offence and non-cognizable offence, secondly, bailable offence and non-bailable offence, and thirdly, compoundable and non-compoundable offence.

In actual, when a layman tries to understand the philosophy behind these terms he may think that basis of these classifications is based on seriousness or gravity of the offence, or on the gravity of the punishment.

Yes! He might be correct but not as a whole for the classification isn’t limited to these perspectives. It is the matter of policy-making to categorize the offences.  The sole purpose is to smoothen the criminal justice system.

To understand the scenario, we first look at the bare provisions regarding the first two categories in brief. Further, we’ll discuss the Compoundable and Non-Compoundable offences in details.

Bailable and Non-Bailable offences

According to Section 2(a) of CrPC:-

‘Bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is bailable by any other law for the time being in force.  ‘Non-bailable offence’ means any other offences. It clearly demarcates if an act which is an offence under the IPC is bailable or not, written in First Schedule. Whatever may be the nature of the offence, if the first schedule mentions it as bailable then it’s bailable. We can see in Section 147 of IPC, the offence of ‘rioting’ which sounds grave but it is a bailable offence, though it is cognizable.

Cognizable and Non-Cognizable offences

According to Section 2(c) of CrPC:-

‘Cognizable offence’ means an offence for which a police officer may in accordance with first schedule arrest without a warrant. We can see Section 466 of IPC, which says, Offence is Forgery of a record of a Court of Justice or of a Registrar of Births, etc., kept by a public servant. Although, it is grave and punishable with the imprisonment for 7 years and fine. It is ‘non-cognizable’ offence while it’s non-bailable in nature.

Compoundable and Non-Compoundable offences

A wrong against society and the state is a serious crime. Therefore, any compromise between the accused and the individual victim of the crime should not absolve the accused from criminal responsibility while some wrongs are of a private nature and are relatively less serious, CrPC considers it expedient to recognize some of them as compoundable offences while others as non-compoundable.

Compounding of Offences Under Ipc

‘Compoundable offences’ are those offences which are relatively less grave in nature in which compromise can be made between the individual and the accused while on the other hand ‘non-compoundable offences’ are those in which compromise can’t be made because of it affects society at large.

The compoundable offences are mostly non-cognizable but the vice-versa is not correct. Section 320 of CrPC deals with the general scheme of the compounding of offence.

Section 320 of CrPC

Offences mentioned in the table provided in section 320 of CrPC are of compoundable in nature. By the way of compounding the offence, the trial comes to end without complete disposal of the case.

Section 320 of CrPC reads as follows: 320(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table. In the table, 21 penal offences are listed, some of these are Sec 298,323,334 of IPC etc. Sec 334 of IPC is an offence of ‘voluntarily causing hurt on provocation’. Sec 323 of IPC is an offence of ‘voluntarily causing hurt’.

320(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of the table. In this table, 36 other penal offences are listed.

Briefly, Offences enumerated under section 320(2) are compoundable with the prior permission of the court. Offences under section 320(1)  are compoundable as a matter of right.

Special or local laws and ambit of section 320 CrPC

According to the scheme of the section, all offences under the special or local laws are simply non-compoundable. Further,  it is left to the wisdom of the legislature to decide as a matter of policy whether and to what extent offences under such laws should be compoundable.

Offences under IPC other than enumerated in Section 320 of CrPC

In the end, section 320(9) of CrPC makes it quite clear that offences not provided in this section are not compoundable. It means there is no effect of compromise on criminal liability of the offence other than this section.

However, the Supreme Court gave permission for compounding the offence under section 307,IPC (attempt to commit murder) in ‘Mahesh Chand v State of Rajasthan’ [1]. The Supreme Court in ‘Ram Lal v State of J&K’ [2], overruled its decision and held that an offence which law declares to be non-compoundable even with the permission of the court cannot be compoundable at all.

In ‘B.S. Joshi v State of Haryana'[3], Supreme Court held that in a situation of proceedings on the basis of non-compoundable offences like Section 498-A and 406, the High Court could quash them under Section 482 CrPC.

In ‘Gian Singh v State of Punjab’, [4], the Supreme Court upholding the decision of ‘B.S. Joshi v State of Haryana'[3], and observed that offences arising out of family disputes or matrimony relating to dowry, etc in which wrong is basically private in nature and parties have resolved their disputes, High Court may quash the proceeding under Section 482 of the Code. This power is different from the power of a criminal court to compound the offences.

Conclusion

Offences in which compromise can be made are compoundable otherwise non-compoundable. In non-compoundable offences, Court may compound the offence i.e. allowing the compromise. Basically, the offences in which criminal liability seizes at the stance of compromise are compoundable offences while criminal liability never comes to an end although compromise has been done between the parties are called non-compoundable offences.

However, in determining the quantum of sentence court considers the fact of compromise. All others special and local laws are non-compoundable if the option of compromise is not expressly provided in the statute.

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1. 1990 Supp (1) SCC 681

2. (1999) 2 SCC 213

3. (2003) 4 SCC 675

4. (2012) 10 SCC 303

Section 147 of the IPC – Rioting

Introduction to Section 147 IPC

Section 147 of the IPC (Indian Penal Code) provides Punishment for rioting. It states that whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

What constitutes to rioting has been defined in section 146 of the IPC as whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offense of rioting. Which simply means that when a group of people come together unlawfully and perform anything (in order to achieve a common goal) using force and violence, every member of that group is guilty for committing the offence of rioting and they could be punished with a term extending to two years, or with fine, or with both. Though the word ‘force’ is defined under section 349 of IPC, violence has not been defined specifically in the Indian Penal Code. But violence is a much wider concept than force because it includes force not only against other people but also against inanimate objects like property.

The offense under section 147 of IPC is cognizable (the police has the authority to arrest the person without a warrant), bailable (bail is a matter of right) and non-compoundable (the Victim and the accused can not reach a compromise to settle the case, a full trial has to be conducted in the court). Accused persons can exclusively be punished under this section even if they could not be convicted for the offense they committed while pursuing the common purpose.

This is the case with simple rioting, but when deadly weapons are used in riots, the punishment varies. Punishment under section 147 relates to only the cases of simple rioting, punishment for rioting with deadly weapons has been separately prescribed under section 148 of the IPC. Section 148 of IPC states that whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Merely the use of force by a group of people does not render them liable for rioting. If the common purpose is not illegal, then the use of force by the assembly will not amount to rioting. And if force was being used by the assembly for a lawful purpose but a sudden quarrel broke out without any pre-planned manner and eventually led to violence, it would not amount to rioting. Generally, it happens that people or spectators gather around the place where the rioting is happening. These spectators should not be considered to be the members of the unlawful assembly. However, if someone is found to be marching with the assembly for quite a distance, they would have to prove their innocence under section 106 of the Evidence Act.

England’s King Bench of the High Court of Justice  defined in the decision of Field v Receiver of Metropolitan Police, [1907]2 KB 859, the 5 elements of rioting to be:

1. The group should have a minimum of three people
2. There should be a common purpose
3. The Inception of that common purpose
4. The intent to help one another by force against any person who opposes them in the execution of their common purpose
5. At least one person of reasonable firmness should be alarmed by the display of this force or violence

Case laws

In Vijay Singh Mankotia v. State of Himachal Pradesh, more than 200 people of a political party were gathered on a public highway for a ‘dharna’ against the state government.  This caused unlawful restraints to others who were supposed to travel on that highway. The Himachal Pradesh High Court observed that it amounted to public nuisance and rioting. A prima facie case was made out against the petitioners for the commission of offenses that are punishable under section 147 of the IPC.

References-

1. Indian Penal Code
2. Code of Criminal Procedure
3. The Evidence Act
4. http://www.duhaime.org/LegalDictionary/R/Riot.aspx

Article 377 IPC – All about Section 377 in India

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Section 306 IPC Abetment of Suicide

Scope of Section 306 of IPC

In India, suicide is not an offense while attempt to suicide is a punishable offense under Section 309 of IPC and so is Abetment of Suicide as mentioned under Section 306 of IPC. In this article, we will be emphasizing on Section 306 of the Indian Penal Code. It states that any person who abets or assists a person in the commission of suicide shall be punished with imprisonment for a term which may extend up to 10 years and shall also be liable to fine[1]. Section 306 is often read with section 107 which describes the term “Abetment”.

Meaning of “Abetment”:

A person abets the commission of activity when:

1. He/ She instigates any person to do a thing;
2. He/ She engages with 1 or more persons in any conspiracy for the doing of that thing or if an act or illegal act takes place in pursuance of the conspiracy; and
3. He/ She intentionally aides the doing of that thing by any act or illegal omission.

Here the 1st clause of section 107 refers to a person who by willful misrepresentation or by willful concealment of material fact which he is supposed to disclose voluntarily causes or procures a thing to be done is said to instigate the doing of the thing.

The 2^nd and the 3^rd clause of the section in simple words signify that any person either prior to or at the time of the commission of an act does anything to facilitate the commission of the act is said to aid the doing of the act. The offense of Abetment of Suicide is a non-bailable and cognizable offense which can be tried by the Court of Session.

The conditions mentioned for this offense seem a little vague and are prone to misuse so there have been various cases which have time and again amended the provisions and laid down guidelines for the application of this section. Here are a few landmark judgments to further illustrate in Section 306.

Important Case Laws in Section 306:

1.) Chitresh Kumar Chopra v State( Govt. of NCT of Delhi):

In this case, the Court dealt with the meaning of the term “instigation” and “goading”. The Court gave its opinion that the mala fide intention to provoke, incite or encourage the commission of an act by a person is mandatory. Each person’s suicidality pattern is different from others thus, it is not possible to lay down a straight-jacket formula while dealing such cases.[2] Each case must be decided on the basis of its own facts and circumstances. The intention of the Legislature and the ratio of the case decided by the Court gave a clear indication that in order to convict a person under Section 306 IPC, mens rea is an indispensable ingredient. It also requires the act to play an active part in pushing the deceased into such a position that he sees no option other than suicide.

 2. )  State of West Bengal v Orilal Jaiswal & Another[3]:

The Court gave out a caution that all Courts should be meticulous while assessing the facts and circumstances of the cases and also the evidence adduced in the trail for finding whether cruelty meted out to the victim persuaded one to end one’s life by committing suicide. If the Court finds out that the victim committing suicide was hypersensitive to the petulance and difference in domestic life an individual is ordinarily exposed to, the Court would not be satisfied for basing a finding that the accused should be held guilty.

3.)  Ramesh Kumar v State of Chattisgarh[4]:

In this case, in a dispute between the husband and wife, the husband uttered to the wife, “You are free to do whatever you wish and go wherever you like”. As a result of this statement, the wife committed suicide. The Court interpreted the term “instigation “ again and declared that in order to satisfy the requirement of instigation, though the actual words must be used for such a consequence, yet a reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered out of anger or emotion cannot be termed as “instigation”.

4.) Manikandan v State:

This has proved to be an imperative judgment in the history of landmark judgments. The Madras High Court held that merely being named in a Suicide Note does not invoke Section 306 IPC. The contents of the note need proper scrutinization to find out whether the accused falls within the ambit of abetment as mentioned under section 306. The Court further declared that “it is not the wish and willingness nor the desire of the victim to die, it must be the wish of the accused, it is the intention on the part of the accused that the victim should die that matters much. There must be a positive act on the part of the accused.”[5]

Conclusion

We thus see that this particular Section of IPC is quite sensitive and has to be used responsibly. The cases portray the intricacies involved in such penal provisions which can be misappropriated in the absence of stern directions from the Court. The decision of a weak-minded or a woman of frail mentality should not be misunderstood as abetment. Sometimes the victim might take the decision of committing suicide unaccompanied by any act or instigation. Thus it would not be fair to blame another person for such foolishness.

[1] Indian Penal Code, s 306

[2] Chitresh Kumar Chopra v State(Government of NCT of Delhi) [2009] 16 SCC 605

[3] [1994] 1 SCC 73

[4] [2001] 9 SCC 618

[5] Manikandan v State [2016] SC 316

Section 144 IPC The Code of Criminal Procedure

The Code of Criminal Procedure (CrPC ) is the principal enactment on the procedure for administration of substantive criminal law in India. It was established in 1973 and came into power on 1 April 1974.

It gives the machinery to the examination of crime, apprehension of suspected criminals, gathering of evidence, assurance of guilt or innocence of the accused individual and the determination of punishment of the guilty. Furthermore, it additionally deals with open public nuisance, prevention of offences and maintenance of wife, child, and parents.

What is Section 144 IPC

Section 144 of the Criminal Code Procedure states the power to issue an order in dire instances of nuisance or apprehended risk.

As indicated by 141-149 of the Indian Penal Code (IPC), the maximum punishment for engaging for taking part in rioting is rigorous imprisonment for 3 years or/and fine. Each individual from an unlawful assembly can be considered responsible for wrongdoing committed by the group. Blocking an officer attempting to disperse an unlawful gathering may pull in further punishment.

In about 1861, Officer Raj-Ratna E.F. Deboo IPS were the creator and draftsman of section 144, which lessened by and large crime in that time in the state of Baroda. He was perceived for his drive and granted a gold medal by the Maharaja Gaekwad of Baroda for setting up Section 144 and lessening by and large crime rate.

The section was imposed for the first time in 1861 by the British Raj, and thereafter turned into a critical instrument to stop every single nationalist protest amid the Indian freedom movement, and its utilization in independent India stays controversial as not much has changed. Usually used to avert freedom of expression by quiet protests or demonstrations, even the law does not utilize the terms, however, it mentions “riot”. Section 144 applies amid mobs and election continuing after the announcement of the election.

144 Section Rules and Conditions

(1) In situations where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or some other Executive Magistrate exceptionally enabled by the State Government for this sake, there is adequate ground for continuing under this section and prompt prevention or speedy remedy is alluring, such Magistrate may, by a written order expressing the material facts of the case and served in the way given by section 134, guide any individual to abstain from a specific act or to take certain order concerning certain property in his ownership or under his management, if such Magistrate thinks about that such course is probably going to prevent, or will in general avert, deterrent, inconvenience or damage to any individual lawfully employed, or threat to human life, health or security, or disturbance of public peacefulness, or an uproar, or an affray.

(2) An order under this section may, in instances of crisis or in situations where the conditions don’t concede to the serving in due time of a notice upon the individual against whom the order is coordinated, be passed ex parte.

(3) An order under this section might be coordinated to a specific individual, or to people dwelling in a specific place or area, or to the general population by and large when frequenting or visiting a specific place or area.

(4) No order under this section will stay in power for over two months from the creation thereof: Provided that, if the State Government thinks so to improve the situation preventing peril to human life, health or security or for keeping an uproar or any affray, it might, by notification, coordinate that an order made by a Magistrate under this section will stay in force for such further period not surpassing a half year from the date on which the order made by the Magistrate would have, yet for such order, lapsed, as it might determine in the said notification.

(5) Any Magistrate may, either on his own or on the use of any individual aggrieved, repeal or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own or on the use of any individual aggrieved, repeal or change any order made by it under the stipulation to subsection (4).

(7) Where an application under subsection (5) or subsection (6) is received, the Magistrate, or the State Government, by and large, will bear to the applicant an early chance of showing up before him or it, either face to face or by pleader and indicating cause against the order; and if the Magistrate or the State Government, all things considered, rejects the application completely or to a limited extent, he or it will record in writing the reasons behind so doing.

Who enforces Section 144 IPC

The orders for Imposing section 144 have been given to Executive Magistrate when there is a crisis situation.

Limitations enforced when Sec 144 IPC is imposed

• The urgency of the circumstance and the power is to be utilized for keeping up public harmony and peace.
• Private rights might be temporarily superseded when there is a contention between public interest and private rights
• Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a procedure under section 144 of Criminal Procedure Code.

How the requests of Sec 144 should be passed?

It must be in written form. Prior to enforcing Section 144, Executive Magistrate needs to guarantee whether there is a need to enforce section 144. For this, he/she have to request material facts.

Duration of Order

• Section 144 would be valid just for a time of two months.
• The state government can expand the validity for two months and maximum up to a half year.
• It can be withdrawn any time of time if the circumstance turns normal.

Section 144 IPC at Kerala

The Pathanamthitta district authority in Kerala has forced Section 144 of the CrPC in Sabarimala and close-by regions ahead of the Chithira Avittom Pooja. The hill shrine in Sabarimala was opened for devotees on November 5 and 6. Prohibitory orders will be set up until November 26.
In the wake of violent protest amid the last monthly pooja, the state police have likewise chosen to increase deployment of forces in Sabarimala area.
Then again, state police keep on taking action against protesters in Pamba and Nilakkal. As per the most recent data, 3,701 individuals have been captured in 543 cases by the police.

At the point when the temple was opened for devotees, at least five ladies attempted to visit the main place of worship. In any case, owing to huge protests at the temple and the police’s failure to give adequate security, the ladies couldn’t enter the shrine.

In conclusion, the article aimed at discovering all the aspects of Section 144 of the CrPC. This Section can be misused at times for political gains and can restrain the freedom of movement of people. Therefore, this section before being imposed should be deliberated upon and if imposed, it should be done with the utmost care and precision.

Cognizable and Non-Cognizable offence in India

The Criminal Procedure Code was brought into existence to provide for machinery for the provision and execution of punishment in consonance with the substantive criminal law (the Indian Penal Code, or any other criminal law). It basically provides rules of proceedings against an accused.

Under the CrPC, all offenses may be characterized on the basis of arrest or cognizance, on the basis of the right to bail, on the basis of the type of trial and on the basis of right to compromise.

ON THE BASIS OF ARREST OR COGNIZANCE

This article would only deal with the classification based on arrest or cognizance.

RATIO OF SUCH CLASSIFICATION

The offenses are classified according to whether a warrant is required for the purpose of investigation and arrest by the concerned police officers. This classification has been made to serve a two-fold purpose:-

1. The first one being, execution of arrest without warrant, and
2. Secondly, the investigation of offenses without the permission of the court.

BASIS OF CLASSIFICATION

The cognizance of an offense depends upon its seriousness. The seriousness of the offense is decided by looking into the punishment of that offense. All offenses punishable with imprisonment of more than three years are the serious offenses and hence are considered to be cognizable.

DEFINITION: The terms cognizable and non-cognizable offense have been defined in Section 2(c) and Section 2(l) respectively as under:-

Section 2 (c) defines cognizable offense as any offense for which a police officer may execute a lawful arrest without a warrant, While

Section 2 (l) defines non- cognizable offense as any offense in which a police officer is ripped off the authority to execute an arrest without a warrant.

Further, the word cognizance has been interpreted by the court in Ajit Kumar Palit v. State of West Bengal[1] as the word cognizance has not been defined in the code. The court explained that it merely means “become aware of” and when used with reference to a court, or a judge, or any judicial officer, it means “to take notice judicially”.

The code does not lay down a precise test of classifying any provided offense as cognizable or non-cognizable. However, it does broadly state that any offense punishable with death, or life imprisonment, or any other punishment over 3 years is to be regarded as a cognizable offense, while expressly providing that this test is subjected to exceptions.

The Supreme Court in the case of State of West Bengal v. Swaran Kumar Guha and Others[2] observed that giving unfettered discretion to the police to decide whether a case is cognizable or non-cognizable would prove to be a ruthless destroyer of personal freedom. It was emphasized that the principles of natural justice are to be followed in every case of determination. It further directed that:

1. It is necessary that all the reasons for making an offense cognizable must be disclosed in the FIR before starting an investigation.
2. The exercise of the powers of investigation must not be misused in any way violating the constitution and legal rights of the accused.
3. But, if in any case it is felt by the court that the rights of an individual are being violated in the investigation process or that the correct procedure is not being followed, the court must intervene in such process.

INVESTIGATION OF COGNIZABLE OFFENCE BY POLICE

The officer-in-charge of a police station may investigate any offense registered in his police station, whether the offense was committed within or without the jurisdiction of the said police station. In such cases, any police officer above the rank of Head Constable is empowered to investigate it on the behalf of the Station house Officer.

Sections 156- 158 lay down the procedure that the police needs to follow on receipt of a complaint of a cognizable offense. Under these provisions, the police are empowered to register complaint even on a piece of information which raises a reasonable suspicion of commission of an offense, although a final report has to be sent to the magistrate. It has also been provided that the police may suo motu take up cognizable cases. However, the police have to ensure that the arrested person cannot be detained for more than 24 hours in the absence of a special order from a magistrate. If an investigation can, however, not be completed within the said 24 hours, and the investigating officer thinks that the accusations are well-found, then the officer must forward the accused to the nearest magistrate.

INVESTIGATION OF NON-COGNIZABLE OFFENCE BY POLICE

In the case of non-cognizable offense, the officer may get an order from the magistrate to investigate, but he shall have no power to arrest the accused without a warrant.

When a piece of information is given to an officer of a non-cognizable offense, he is bound to record such information in a book to be maintained by him in such form as may be prescribed by the state government, and further refer the informant to the magistrate.

CRITICISM

The execution of arrest without warrant and investigation without the permission of the court has led to some undesirable consequences too. For instance, in respect of social reform litigation where the offense is punishable with less than three years, there is practically no enforcement of the law as the police are not authorized to take any initiative in such cases.[3] However, if such offenses are expressly made cognizable, it would serve the social policy better. Steps have been taken towards making such express provisions, for instance, a person accused under

1. The Child Marriage Restraint Act, 1929
2. Possession without lawful excuse
3. Who has been proclaimed as an offender
4. Obstruction of the police officer in performing his duties
5. Desertion of the Armed forces of the Union, etc.

CONCLUSION

I would like to conclude that although the classification of offenses has been made to make the dispensation of justice easier, still it is hindered because of grey area left in the classification, so there remains a need for reclassification as suggested above.

[1] AIR 1963 SC 765

[2] 1982 SCC 561

[3] R.V.S. Kelkar, Outlines of Criminal Procedure, Lucknow: Eastern Book Company

Child Sexual Abuse in India

Child abuse is increasingly gaining attention due to the increase in the rate of crime towards children. India and many other parts of the world are constantly dealing with child abuse and in curbing the violence against children. Child abuse can be in various forms being physical, emotional, sexual, neglect and exploitation.

Children and adolescents are constant victims of sexual abuse, either by known members of the family or by strangers. Such cases which involve the involvement of family members often go unreported. There are many undesirable and unavoidable effects of such cases for which the children fall prey.

Child Sexual Abuse in India

As per the latest report of the National Crime Records Bureau, two most shocking revelation was made:

1. India records the maximum number of cases of Child Sexual abuse even in a situation where all the cases of such abuse are not recorded.
2. In India, every fifteen minutes, a child is abused sexually, which makes the count as four child victims every hour.[1]

Child Sexual Abuse can be defined as given by WHO

“The involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to, or for which the child is not developmentally prepared, or else that violate the laws or social taboos of society.”[2]

In a survey conducted in 2017 by the Humanitarian Aid organization World vision India, with more than 45,000 children participating from 26 states, it was revealed that one in every two children have been a victim of such abuse.[3]

Protection of Children from Sexual Offences Act, 2012

To decrease and penalize the act of child sexual abuse strictly Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) was passed by the parliament and received Presidential Assent on 19^th June 2012. Before this enactment, IPC covered all the offenses but there was no distinction between adult and child victims.

The Act defines a child as a person who is under the age of 18.[4] The act was passed to provide protection from sexual abuse to all children below the age of 18 years. In the case of Ms. Eera Through Dr. Manjula v. State (Govt. of NCT of Delhi)[5], the proposal was a consideration should be given to mental age of a person, however the same was not accepted by the court. The act is formulated and at all stages is determined to work for the best interest of the child.

Salient features of the Act:

1. The aim of enacting this act is to protect the children and their rights.
2. The act provides for special courts with the objective of speedy disposal of cases. (section 28). After taking cognizance, the trial for the offense shall be completed within a period of one year. (Section 35)
3. The act is not gender-sensitive and there is no difference considered on the basis of gender.
4. Types of offenses recognized and punishment:
5. Penetrative Sexual Assault (Section 4): punished which imprisonment not less than seven years but may extend to imprisonment for life and fine.
6. Aggravated penetrative Sexual Assault (Section 6): the convict may be punished with rigorous imprisonment of ten years extending to imprisonment for life and fine.
7. Sexual Assault (Section 8): imprisonment may be between three years to five years and fine.
8. Aggravated sexual assault (Section 10): this act may be punished with imprisonment not less than five years which may extend to seven years and fine.
9. Sexual harassment (Section 12): punished with imprisonment which may extend up to three years and fine.
10. The identity of any victim cannot be disclosed by the media as per section 23. Such an act is punishable with imprisonment for a term of six months and may extend to one year or with a fine.
11. CWC (Child welfare Committees) are vested with the role of taking the decision of either keeping the child in an institution or with family within three days of the institution of the complaint.
12. The proceeding of the trial under this act is conducted in camera with parents or any other person or child’s choice being present.

In the case of Shankar Kisanrao Khade v State of Maharashtra[6], the convict, in this case, has subjected the victim (a minor girl, 11 years) to murder after series of rape and was awarded death sentence by the Bombay High Court which was later reduced to rigorous imprisonment for life. While the trial for the case was going on the POSCO Act was passed. In this case, the judge reiterated the fact that our laws focus more on penalizing after the commission of the crime and there are fewer preventive measures. The focus should be the best interest of the child while deciding any of the matter of child abuse.

Conclusion

Child Sexual Abuse is often a phenomenon which family members prefer to keep it as a secret and which only results in more adverse effects on the child. Indian Law is penal in nature whereas it should provide for safeguarding and protecting the best interest of the child. The POSCO act makes it mandatory to report of an offense but the matter still goes unreported and unheard. Even after the enactment of the act, the number of cases did not decrease but repeatedly went up. Rehabilitation and prevention should be the focus.

[1] https://www.bbc.com/news/world-asia-india-42193533

[2] Guidelines for medico-legal care for victims of sexual violence; Geneva: World Health Organization

[3] https://www.hindustantimes.com/india-news/one-in-every-two-children-victim-of-sexual-abuse-says-survey/story-spc4MsZTJsmjyrlTZJep7L.html

[4] Section 2 of the POSCO Act

[5] S.L.P (Crl) Nos. 26402642 of 2016

[6] Criminal Appeal No. 362-363 of 2010