CHAPTER VI
PROCEDURES FOR RECORDING STATEMENT OF THE CHILD
SECTION 24 RECORDING OF STATEMENT OF A CHILD
1. The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector.
2. The police officer while recording the statement of the child shall not be in uniform.
3. The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.
4. No child shall be detained in the police station in the night for any reason.
5. The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.
SECTION 25 RECORDING OF STATEMENT OF A CHILD BY MAGISTRATE
1. If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974) (herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child:
Provided that the provisions contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.
2. The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code
SECTION 26 ADDITIONAL PROVISIONS REGARDING STATEMENT TO BE RECORDED --
1. The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.
2. Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance of a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child
3. The Magistrate or the police officer, as the case may be, may, in the case of a child having a mental or physical disability seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of the child.
2. Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the statement of the child is also recorded by audio-video electronic means.
SECTION 27 MEDICAL EXAMINATION OF A CHILD
1. The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973 (2 of 1973
2. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
3. The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
4. Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution
CHAPTER VII
SPECIAL COURTS
SECTION 28 DESIGNATION OF SPECIAL COURTS. —
1. For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.
2. While trying an offence under this Act, a Special Court shall also try an offence [other than the offence referred to in sub-section (1)], with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.
3. The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000 (21 of 2000) shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act, or conduct or manner or facilitates abuse of children online.
SECTION 29 PRESUMPTION AS TO CERTAIN OFFENCES. —
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
SECTION 30 PRESUMPTION OF CULPABLE MENTAL STATE. —
1. In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
2. For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
EXPLANATION
In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
SECTION 31 APPLICATION OF CODE OF CRIMINAL PROCEDURE, 1973 TO PROCEEDINGS BEFORE A SPECIAL COURT
Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
SECTION 32 SPECIAL PUBLIC PROSECUTORS
1. The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.
2. A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.
3. Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and provision of that Code shall have effect accordingly.
CHAPTER VIII
PROCEDURE AND POWERS OF SPECIAL COURTS AND RECORDING OF EVIDENCE
SECTION 33 PROCEDURE AND POWERS OF SPECIAL COURT. —
1. A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts
2. The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
3. The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
4. The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
5. The Special Court shall ensure that the child is not called repeatedly to testify in the court.
6. The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.
7. The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
EXPLANATION
For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.
8. In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
9. Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.
SECTION 34 PROCEDURE IN CASE OF COMMISSION OF OFFENCE BY CHILD AND DETERMINATION OF AGE BY SPECIAL COURT
1. Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
2. If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
3. No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a persons determined by it under sub-section (2) was not the correct age of that person.
SECTION 35 PERIOD FOR RECORDING OF EVIDENCE OF CHILD AND DISPOSAL OF CASE
1. The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.
2. The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.
SECTION 36 CHILD NOT TO SEE ACCUSED AT THE TIME OF TESTIFYING
1. The Special Court shall ensure that the child is not exposed in any way to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.
2. For the purposes of sub-section (1), the Special Court may record the statement of a child through video conferencing or by utilizing single visibility mirrors or curtains or any other device
SECTION 37 TRIALS TO BE CONDUCTED IN CAMERA.
The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence:
Provided that where the Special Court is of the opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a commission in accordance with the provisions of section 284 of the Code of Criminal Procedure, 1973 (2 of 1974).
SECTION 38 ASSISTANCE OF AN INTERPRETER OR EXPERT WHILE RECORDING EVIDENCE OF CHILD. —
1. wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of the child.
2. If a child has a mental or physical disability, the Special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed to record the evidence of the child.
CHAPTER IX MISCELLANEOUS
SECTION 39 GUIDELINES FOR CHILD TO TAKE ASSISTANCE OF EXPERTS, ETC.—
Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of non-governmental organizations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.
SECTION 40 RIGHT OF CHILD TO TAKE ASSISTANCE OF LEGAL PRACTITIONER
Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974) the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:
Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.
SECTION 41 PROVISIONS OF SECTIONS 3 TO 13 NOT TO APPLY IN CERTAIN CASES
The provisions of sections 3 to 13 (both inclusive) shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian.
SECTION 42 ALTERNATE PUNISHMENT
Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C,354D, 370, 370A, 375, 376, 376A,376AB,376B, 376C, 376D, 376DA, 376DB, 376E, or section 509 of the Indian Penal Code or section 67B of the Information Techno logy Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree
SECTION 43 ACT NOT IN DEROGATION OF ANY OTHER LAW. —
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have over riding effect on the provisions of any such law to the extent of the inconsistency.
SECTION 43 PUBLIC AWARENESS ABOUT ACT. —
The Central Government and every State Government, shall take all measures to ensure that the provisions of this Act are given wide publicity through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act; he officers of the Central Government and the State Governments and other concerned persons (including the police officers) are imparted periodic training on the matters relating to the implementation of the provisions of the Act
SECTION 44 MONITORING OF IMPLEMENTATION OF ACT.—
1. The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) shall in addition to the functions assigned to them under that Act, also monitor the implementation of the provisions of this Act in such manner as may be prescribed.
2. The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, while inquiring into any matter relating to any offence under this Act have the same powers as are vested in it under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
3. The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, also include, its activities under this section, in the annual report referred to in section 16 of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
SECTION 45 POWER TO MAKE RULES --
1. The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act
2. In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely--
a. the qualifications and experience of, and the fees payable to, a translator or an interpreter, a special educator or any person familiar with the manner of communication of the child or an expert in that field, under sub-section (4) of section 19; sub-sections (2) and (3) of section 26 and section 38;
b. care and protection and emergency medical treatment of the child under sub-section (5) of section 19
c. the payment of compensation under sub-section (8) of section 33
d. the manner of periodic monitoring of the provisions of the Act under sub-section (1) of section44.
3. Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule
SECTION 46 POWER TO REMOVE DIFFICULTIES
If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for removal of the difficulty
Provided that no order shall be made under this section after the expiry of the period of two years from the commencement of this Act Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament