Section 40 of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Original Text
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.
Visual Summary
Right to Choice
The family or guardian has the absolute right to engage a private lawyer of their own choice to assist in the case.
Free Legal Aid
If the family cannot afford a lawyer, the Legal Services Authority is legally mandated to provide one free of cost.
Procedural Role
The private lawyer assists the Public Prosecutor subject to Section 301 of the CrPC (acting under the PP’s directions).
Summary
Section 40 of the POCSO Act ensures that a child victim is not left without proper legal representation. While the State appoints a Special Public Prosecutor to fight the case against the accused, this section grants the child’s family or guardian the specific right to hire their own private lawyer to assist in the proceedings.
Crucially, this section addresses economic disparity. It mandates that if the family is unable to pay for a lawyer, the Legal Services Authority must step in and provide a lawyer to them. This ensures that justice is not denied due to a lack of funds.
Note: The section references Section 301 of the CrPC. This means that while the private lawyer can assist, the Public Prosecutor remains in charge of the prosecution. The private lawyer acts under the directions of the Public Prosecutor and may submit written arguments with the Court’s permission.
Key Takeaways
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Empowerment: The child’s family is not solely dependent on the Public Prosecutor; they can engage their own counsel. -
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Financial Protection: Poverty is not a barrier to justice; the State must provide a lawyer if the family cannot afford one. -
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Legal Framework: The private counsel’s role is supplementary to the Public Prosecutor, governed by CrPC Section 301. -
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Mandatory Provision: The provision of a lawyer by the Legal Services Authority is mandatory (“shall provide”), not optional.
Process Flowchart
Practice Questions
Q1. Under Section 40, who is responsible for providing a lawyer if the family cannot afford one?
Show Answer
Correct Answer: The Legal Services Authority.
Q2. The right to legal counsel under Section 40 is subject to which section of the Code of Criminal Procedure?
Show Answer
Correct Answer: Section 301 of the CrPC.
Q3. Who is entitled to the assistance of legal counsel under this section?
Show Answer
Correct Answer: The family or the guardian of the child.
Related Provisions
- Section 32: Special Public Prosecutors
- Section 39: Guidelines for child to take assistance of experts
- Section 301 CrPC: Appearance by Public Prosecutors
Conclusion
Section 40 is a vital safeguard within the POCSO Act, ensuring that the legal battle for justice is not hindered by the financial status of the victim’s family. By mandating the provision of legal counsel through the Legal Services Authority, the Act reinforces the principle of fair representation and ensures that the child’s interests are actively protected alongside the state prosecution.