§ A special law and three general codes

The POCSO Act is a special law, and the new codes are general laws. Where the special law makes provision, it governs; where it is silent, the general law fills the gap.

Section 42A makes the point expressly: the Act is in addition to and not in derogation of any other law, but where there is an inconsistency, the POCSO Act prevails.

Section 42 deals with overlap in punishment: where an act is an offence under the POCSO Act and also under the general penal law, the offender is liable to the punishment greater in degree.

The references in the Act. The POCSO Act still names provisions of the Penal Code and the Code of Criminal Procedure, for instance in Sections 25 and 42. By Section 8 of the General Clauses Act, 1897, a reference to a repealed provision that has been re-enacted is read as a reference to the provision so re-enacted, so those references now point to the corresponding provisions of the new codes.

s. 375 and s. 376

s. 63 and s. 64

Rape and its punishment. The BNS offence protects a WOMAN; POCSO protects any CHILD, of any sex

s. 375 sixthly

s. 63 sixthly

Intercourse with a woman below EIGHTEEN, with or without her consent, is rape. The age is the same as in POCSO

s. 375 Exception 2

s. 63 Exception 2

The marital exception, which now applies only where the wife is NOT UNDER EIGHTEEN, giving statutory form to Independent Thought

s. 376AB and s. 376DA, 376DB

s. 65 and s. 70

Aggravated punishment for rape of a woman under sixteen and under twelve, and for gang rape of a woman under eighteen

s. 354 and s. 509

s. 74 and s. 79

Assault with intent to outrage modesty, and words or gestures intended to insult modesty; overlap with sexual assault and sexual harassment under POCSO

s. 377

No equivalent

Unnatural offences were not carried into the BNS

§ The consequence of the omission of Section 377

The BNS has no provision corresponding to Section 377. For an adult male victim of non-consensual penetration, the general law now contains no specific offence.

For a boy, POCSO fills the space entirely. Penetrative sexual assault under Section 3 of the POCSO Act is defined by reference to a child, of any sex, so the protection of a male child is unaffected.

The practical point for an answer. Before 2024 a prosecution for abuse of a boy might add charges under Section 377. After 2024, the POCSO Act is the principal protection, which makes its gender neutrality more important than ever.

s. 154

s. 173

Registration of information. The BNSS recognises a ZERO FIR, registered irrespective of where the offence was committed, and information by electronic means

s. 164

s. 183

Statement before a Magistrate. POCSO s. 25 requires the Magistrate to record the child's statement AS SPOKEN BY THE CHILD

s. 164A

s. 184

Medical examination of a victim of rape, read with POCSO s. 27 on the examination of a child

s. 173(1A)

s. 193(2)

Investigation of offences under POCSO ss. 4, 6, 8 and 10 to be completed within TWO MONTHS from the recording of the information

s. 357A

s. 396

The victim compensation scheme, applied in quantifying compensation under POCSO s. 33(8)

s. 482

s. 528

The inherent power of the High Court, invoked in petitions to quash POCSO proceedings

§ Where the special procedure still governs

• Recording the statement. Sections 24 to 26 of the POCSO Act, on where, by whom and how the child's statement is recorded, apply as special provisions alongside the BNSS.

• The trial. Sections 33 to 38, on the child-friendly trial, in-camera proceedings, the child not seeing the accused, and the time limits in Section 35, continue to govern the Special Court.

• The court. Offences under the Act are tried by the Special Court designated under Section 28, not by the court that would be competent under the general law.

s. 118

s. 124

Competency of witnesses. A child is competent if able to understand the questions put and to give rational answers; there is no minimum age

s. 53A

s. 48

In prosecutions for sexual offences, evidence of the victim's character or previous sexual experience is not relevant on the question of consent

s. 114A

s. 120

Presumption as to absence of consent in certain prosecutions for rape

s. 65B

s. 63

Admissibility of electronic records, critical in offences under POCSO ss. 13 to 15

📖 Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341

The Supreme Court held that a child witness, if found competent to depose to the facts and reliable, may be relied upon, and that the evidence of a child witness does not require corroboration as a rule of law. The rule of prudence is that the court should scrutinise such evidence with care, since a child may be susceptible to tutoring, and should satisfy itself that the child understood the questions and gave rational answers.

Rule: the test is competence and reliability, not age. The principle continues under Section 124 of the Bharatiya Sakshya Adhiniyam.

§ The POCSO presumptions sit above the general law of evidence

Section 29 of the POCSO Act: where a person is prosecuted for committing, abetting or attempting an offence under Sections 3, 5, 7 or 9, the Special Court shall presume that he committed it, unless the contrary is proved.

Section 30: in a prosecution for an offence requiring a culpable mental state, the court shall presume its existence, and the accused may prove that he had no such mental state; the fact is proved only when established beyond reasonable doubt, and not merely by a preponderance of probability.

These are special presumptions, stronger than anything in the general law, and they are unaffected by the replacement of the Evidence Act.

But they are not free-standing. They arise only once the prosecution has proved the foundational facts, including that the victim was a child and that the accused was connected with the act.

Victim

The sexual offences largely protect a WOMAN

Protects any CHILD below eighteen, of any sex

Consent

Absence of consent is an ingredient of rape for an adult woman

Consent is legally irrelevant where the victim is a child

Structure

Offences defined largely by the act

Graded offences, aggravated by the position of the offender and the circumstances

Burden

The prosecution proves every ingredient beyond reasonable doubt

Sections 29 and 30 raise presumptions of guilt and of culpable mental state once foundational facts are proved

Reporting

No general duty to report

Section 19 makes reporting mandatory, and Section 21 punishes failure

Court

The court competent under the BNSS

A designated Special Court under Section 28

Procedure

The ordinary trial

A child-friendly trial under Sections 33 to 38, in camera and within fixed time limits

Media

General protection of identity in certain sexual offences

Section 23 bars disclosure of any particular that may identify the child

Punishment overlap

Not applicable

Section 42: the punishment greater in degree applies