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State of Jammu-Kashmir - Act

Jammu and Kashmir Protection of Children from Sexual Violence Act, 2018

JAMMU & KASHMIR
India

Jammu and Kashmir Protection of Children from Sexual Violence Act, 2018

Act 36 of 2018

Published on 7 December 2018
Commenced on 7 December 2018
[This is the version of this document from 7 December 2018.]
[Note: The original publication document is not available and this content could not be verified.]

Jammu and Kashmir Protection of Children from Sexual Violence Act, 2018(Act No. 36 of 2018)[Dated 7th December, 2018.]Enacted by the Governor in the Sixty-ninth Year of the Republic of India.A Act to protect children from sexual violence including offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.In exercise of the powers vested under Proclamation P-1/18 of 2018 dated 20th of June, 2018, the Governor is pleased to enact as follows :-

Chapter I
Preliminary

1. Short title, extent and commencement.

(1)This Act may be called the Jammu and Kashmir Protection of Children from Sexual Violence Act, 2018.

(2)It shall come into force from the date of its publication in the Government Gazette.

2. Definitions.

- In this Act, unless the context otherwise requires,-(a)"Act" means the Jammu and Kashmir Protection of Children from Sexual Violence Act, 2018 ;(b)"aggravated penetrative sexual assault" has the same meaning as assigned to it in section 5 ;(c)"aggravated sexual assault" has the same meaning as assigned to it in section 9 ;(d)"armed forces or security force" means armed forces of the Union or security forces or police forces ;(e)"child" means any person below the age of eighteen years ;(f)"domestic relationship" shall have the same meaning as assigned to it in clause (f) of section 2 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 ;(g)"Government" means the Government of Jammu and Kashmir ;(h)"penetrative sexual assault" has the same meaning as assigned to it in section 3 ;(i)"prescribed" means prescribed by rules made under this Act ;(j)"religious institution" shall have the same meaning as assigned to it in the Religious Institutions (Prevention of Misuse) Act, 1988 (Central Act No. 41 of 1988) ;(k)"sexual assault" has the same meaning as assigned to it in section 7 ;(l)"sexual harassment" has the same meaning as assigned to it in section 11 ;(m)"shared household" means a household where the person charged with the offences lives or has lived at any time in a domestic relationship with the child ;(n)"Special Court" means a court designated as such under section 28 ; and(o)"Special Public Prosecutor" means a Public Prosecutor appointed under section 33.

(2)The words and expressions used and not defined herein but defined in the State Ranbir Penal Code, the Code of Criminal Procedure, Samvat 1989, the Juvenile Justice (Care and Protection of Children) Act, 2013 and the Information Technology Act, 2000 (Central Act No. 21 of 2000) shall have the meaning respectively assigned to them in the said laws.

Chapter II
A-penetrative Sexual Assault and Punishment therefor

3. Penetrative Sexual Assault.

- A person is said to commit "penetrative sexual assault" if-

(a)he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person ; or

(b)he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person ; or

(c)he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to so with him or any other person ; or

(d)he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

4. Punishment for penetrative sexual assault.

- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.B-Aggravated Penetrative Sexual Assult and Punishment therefor

5. Aggravated Penetrative Sexual Assault.

(a)Whoever, being a Police Officer, commits penetrative sexual assault on a child-

(i)within the limits of the police station or premises at which he is appointed, or

(ii)in the premises of any station house, whether or not situated in the police station, to which he is appointed ; or

(iii)in the course of his duties or otherwise ; or

(iv)where he is known as, or identified as a police officer ; or

(b)whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child-

(i)within the limits of the area to which the person is deployed ; or

(ii)in any areas under the command of the forces or armed forces ; or

(iii)where the said person is known or identified as a member of the security or armed forces ; or

(c)whoever being a public servant commits penetrative sexual assault on a child ; or

(d)whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection ; or

(e)whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital ; or

(f)whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on the child in that institution ; or

(g)whoever commits gang penetrative sexual assault on a child.

Explanation: - When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone ; or

(h)whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance ; or

(i)whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child ; or

(j)whoever commits penetrative sexual assault on a child, which-

(i)physically incapacitates the child or causes the child to become mentally ill as defined under clause (s) of section 2 of the Mental Health Care Act, 2017 (Central Act No. 10 of 2017) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently ; or

(ii)inflicts the child with Human Immune Deficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks ; or

(k)whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child ; or

(l)whoever commits penetrative sexual assault on the child more than once or repeatedly ; or

(m)whoever commits penetrative sexual assault on a child below twelve years ; or

(n)whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child ; or

(o)whoever, being in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child ; or

(p)whoever, being in a position of trust or authority of a child, commits penetrative sexual assault on the child in an institution or home of the child or anywhere else ; or

(q)whoever commits penetrative sexual assault on a child knowing the child is pregnant ; or

(r)whoever commits penetrative sexual assault on a child and attempts to murder the child ; or

(s)whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence ; or

(t)whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force ; or

(u)whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.

6. Punishment for aggravated penetrative sexual assault.

- Whoever, commits aggravated penetrative sexual assault shall b punished with rigorous imprisonment which shall not be less than twelve years but may extend to imprisonment for life and shall also be liable to fine.C-Sexual Assault and Punishment therefor

7. Sexual Assault.

- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

8. Punishment of Sexual Assault.

- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.D-Aggravated Sexual Assault and Punishment therefor

9. Aggravated Sexual Assault.

(a)Whoever, being a police officer, commits sexual assault on a child-

(i)within the limits of the police station or premises where he is appointed ; or

(ii)in the premises of any station house whether or not situated in the police station to which he is appointed ; or

(iii)in the course of his duties or otherwise ; or

(iv)where he is known as, or identified as a police officer ; or

(b)whoever, being a member of the armed forces or security forces, commits sexual assault on a child-

(i)within the limits of the area to which the person is deployed ; or

(ii)in any areas under the command of the security or armed forces ; or

(iii)in the course of his duties or otherwise ; or

(iv)where he is known or identified as a member of the security or armed forces ; or

(c)whoever being a public servant commit sexual assault on a child; or

(d)whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection ; or

(e)whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital ; or

(f)whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution ; or

(g)whoever commits gang sexual assault on a child ;

(h)whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance ; or

(i)whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child ; or

(j)whoever commits sexual assault on a child, which-

(ii)inflicts the child with Human Immuno Deficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks ; or

(k)whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child ; or

(l)whoever commits sexual assault on the child more than once or repeatedly ; or

(m)whoever commits sexual assault on a child below twelve years ; or

(n)whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child ; or

(o)whoever being in the ownership or management or staff of any institution providing services to the child, commits sexual assault on the child in such institution ; or

(p)whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else ; or

(q)whoever commits sexual assault on a child knowing the child is pregnant ; or

(r)whoever commits sexual assault on a child and attempts to murder the child ; or

(s)whoever commits sexual assault on a child in the course of communal or sectarian violence ; or

(t)whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force ; or

(u)whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault.

10. Punishment for aggravated sexual assault.

- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to ten years, and shall also be liable to fine.E-Sexual Harassment and Punishment therefor

11. Sexual harassment.

- A person is said to commit sexual harassment upon a child when such person with sexual intent,-

(i)utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child ; or

(ii)makes a child exhibit his body or any part of his body so as it is seen by such person or any other person ; or

(iii)shows any object to a child in any form or media for pornographic purposes ; or

(iv)repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means ; or

(v)threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act ; or

(vi)entices a child for pornographic purposes or gives gratification therefor.

Explanation: - Any question which involves "sexual intent" shall be a question of fact.

12. Punishment for sexual harassment.

- Whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Chapter III
Using Child for Pornographic Purposes and Punishment therefor

13. Using Child for Pornographic purposes.

- Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes-

(a)representation of the sexual organs of a child ;

(b)usage of a child engaged in real or simulated sexual acts (with or without penetration) ; and

(c)the indecent or obscene representation of a child ;

shall be guilty of the offence of using a child for pornographic purposes.Explanation: - For the purposes of this section, the expression "use a child" shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.

14. Punishment for using child for pornographic purposes.

(1)Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also be liable to fine.

(2)If the person using the child for pornographic purposes commits an offence referred to in section 3, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than twelve years but which may extend to imprisonment for life, and shall also be liable to fine.

(3)If the person using the child for pornographic purposes commits an offence referred to in section 5, by directly participating in pornographic acts, he shall be punished for rigorous imprisonment for life which shall mean the imprisonment for the remainder of that persons natural life and shall also be liable to fine.

(4)If the person using the child for pornographic purposes commits an offence referred to in section 7, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than six years but which may extend to eight years, and shall also be liable to fine.

(5)If the person using the child for pornographic purposes commits an offence referred to in section 9, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than eight years but which may extend to ten years, and shall also be liable to fine.

15. Punishment for storage of pornographic material involving child.

- Any person, who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both.

Chapter IV
Abetment of and Attempt to Commit an Offence

16. Abetment of an offence.

- A person abets an offence, who-First. - Instigates any person to do that offence ; orSecondly. - Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence ; orThirdly. - Intentionally aids, by any act or illegal omission, the doing of that offence.Explanation I: - A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.Explanation II: - Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.Explanation III: - Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.

17. Punishment for abetment.

- Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.Explanation: - An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.

18. Punishment for attempt to commit an offence.

- Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.

Chapter V
Procedure for Reporting of Cases

19. Reporting of offence.

(1)Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-

(a)the Special Juvenile Police Unit ; or

(b)the local police.

(2)Every report given under sub-section (1) shall be-

(a)ascribed an entry number and recorded in writing ;

(b)be read over to the informant ;

(c)shall be entered in a book to be kept by the Police Unit.

(3)Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.

(4)In case contents are being recorded in the language not understood by the child or where child is temporarily or permanently physically disabled, a translator or an interpreter or a special educator or a medical officer, having such qualifications, experience as may be prescribed, shall be provided to the child free of cost wherever it is deemed necessary :Provided that if the child making the statement is temporarily or permanently disabled, the statement made by the child with the assistance of an interpreter or special educator or medical officer may be videographed.

(5)Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed.

(6)The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

(7)No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).

20. Obligation of media, studio and photographic facilities to report cases.

- Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.

21. Punishment for failure to report or record a case.

(1)Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

(2)Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.

(3)The provisions of sub-section (1) shall not apply to a child under this Act.

22. Punishment for false complaint or false information.

(1)Any person, who makes false complaint or provides fals information against any person, in respect of an offence committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.

(2)Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child.

(3)Whoever, not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimizing such child in any of the offences under this Act, shall be punished with imprisonment which may extend to one year or with fine or with both.

23. Procedure for media.

(1)No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.

(2)No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child :Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

(3)The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.

(4)Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.

Chapter VI
Procedures for Recording Statement of the Child

24. Recording 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/she usually resides or at the place of his/her 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.

25. Recording statement of a child by Magistrate.

(1)If the statement of the child is being recorded under section 164 or 164-A of the Code of Criminal Procedure, Samvat 1989, the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child.

(2)The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 205-B of the Code of Criminal Procedure, Samvat 1989, upon the final report being filed by the police under section 173 of the Code of Criminal Procedure, Samvat 1989.

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 free of cost 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.

(4)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.

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 164-B of the Code of Criminal Procedure, 1989.

(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

28. Designation of Special Courts.

(1)For the purposes of providing a speedy trial, the Government shall in consultation with the Chief Justice of the High Court, by notification in the Government Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act.

(2)While trying an offence under this Act, a Special Court shall also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure, Samvat 1989, be charged at the same trial.

(3)The Special Court designated under this Act, notwithstanding anything in the Information Technology Act, 2000 (Central Act No. 21 of 2000) shall have jurisdiction to try offences under section 67-B 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.

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 the offence, unless the contrary is proved.

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.

31. Application for Code of Criminal Procedure, 1989 to proceedings before a Special Court.

- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, Samvat 1989 (including the provisions as to remand) 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.

32. Offences to be cognizable and non-bailable.

(1)The offences under this Act shall be cognizable and non-bailable.

(2)Notwithstanding anything contained in the Code of Criminal Procedure, Samvat, 1989, no person accused of an offence punishable under this Act shall if in custody be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release :Provided that such accused person shall not be released on bail or on his own bond if the Court, on perusal of the case diary or the report made under section 173 of the Code of Criminal Procedure, Samvat 1989, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(3)The restrictions on granting of bail specified in sub-section (1) shall be in addition to the restrictions under the Code of Criminal Procedure, Samvat 1989 or any other law for time being in force on granting of bail.

(4)Nothing in section 497A of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence under the provisions of this Act.

33. Special Public Prosecutor.

(1)The State Government shall, by notification in the Government 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 section 492 of the Code of Criminal Procedure, Samvat 1989 and provision of that Code shall have effect accordingly.

Chapter VIII
Procedure and Powers of Special Courts and Recording of Evidence

34. 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, neighborhood 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, Samvat 1989 for trial before a Court of Session.

35. 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 Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013.

(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 person as determined by it under sub-section (2) was not the correct age of that person.

36. Special procedure for recording of evidence of child and disposal of case.

(1)The trial of offences under this Act shall commence within one week from the date of the presentation of the police report under section 173 of the Code of Criminal Procedure, Samvat 1989 and shall as far as possible be completed within a period of three months. The proceedings of the Court shall preferably be held on day to day basis :Provided that a report on the status of the trial shall be sent by the trial Court to the High Court after every three months with reasons of non-conclusion of trial.

(2)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.

(3)The witnesses of the prosecution shall be bound to appear before the Court on the date fixed for the hearing on a notice received from Investigating Officer, Public Prosecutor or Court.

(4)The list of defence witnesses shall be submitted by the accused within two working days of the closure of prosecution evidence and recording of statement of the accused, if any. These witnesses shall be summoned and served by the Court :Provided that the court may at the request of the defence summon witnesses other than those included in the list for reasons to be recorded.

37. 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.

38. 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 504 of the Code of Criminal Procedure, 1989.

39. Assistance of an interpreter of expert while recording evidence of child.

(1)Wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience 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 and experience as may be prescribed to record the evidence of the child.

Chapter IX
Miscellaneous

40. 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.

41. Right of child to take assistance of legal practitioner.

- Subject to the proviso to section 340-A of the Code of Criminal Procedure, Samvat 1989, 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 concerned shall provide a lawyer to them.

42. Provisions of section 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.

43. Alternative punishment.

(1)Where an act or omission constitute an offence punishable under this Act and also under sections 166A, 354A, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376C, 376D, 376DA, 376DB, 376E or section 509 of the State Ranbir Penal Code, 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 such law or this Act as provides for punishment which is greater in degree.

44. Public awareness about Act.

- The Government, shall take all measures to ensure that,-

(a)the provisions of this Ordinnace 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 ;

(b)the 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."

45. Free Medical treatment to victims.

(1)All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under this Act and shall immediately inform the police of such incident.

(2)Whoever being incharge of a hospital, public or private, whether run by the Central Government, the State Government, Local Bodies or any other person, contravenes the provisions of sub-section (1) of this Act, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.Explanation: - The expression "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of victims during convalescence or of victims requiring medical attention or rehabilitation or medical examination or pathological tests.

46. Educational Institutions to ensure safety and protection of children.

(1)Every Educational Institution shall ensure that child studying in such institution shall not be exposed to any kind of sexual abuse or any of the offences under this Act.

(2)The Government shall lay down policy and guidelines for fixing the liability of educational institution in whose premises offences under this Act take place and to fix the duty of other Government Institution to ensure proper safety of school going children in particular and child in general.

47. Act not in derogation of any other law.

- The provision 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.

48. Power to remove difficulties.

- If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order not inconsistent with the provisions of this Act, remove the difficulty :Provided that no such order shall be made after the expiry of a period of two years from the commencement of the Act.

49. Power to make rules.

(1)The Government may, by notification in the Government 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 subsection (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 section 44.

(e)any other matter which is to be or may be prescribed from time to time.

50. Repeal and Saving.

(1)The Jammu and Kashmir Protection of Children from Sexual Violence Ordinance, 2018 (Ordinance No. II of 2018) is hereby repealed.

(2)Notwithstanding such repeal, anything done or any action taken (including any notification, order, scheme, permission or rule made, granted or issued) under the said Ordinance shall continue in force and be deemed to have been done or taken under the provisions of this Act, unless and until it is superseded by anything done or any action taken under this Act.

(3)All prosecutions and other proceedings instituted under the Jammu and Kashmir Protection of Children from Sexual Violence Ordinance, 2018 shall be continued as if instituted under this Act.

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State of Jammu-Kashmir - Act