Code: Section 40 POCSO
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
Explanation of Section 40 POCSO
Section 40 of the Protection of Children from Sexual Offences Act (POCSO) ensures that the child victim has the right to legal representation during legal proceedings. It emphasizes the importance of safeguarding the legal interests of the child through proper legal assistance.
In line with Section 301 of the Code of Criminal Procedure, 1973, this provision allows the child’s family or guardian to appoint a legal practitioner of their choice. However, recognizing that not all families may be financially capable of hiring a lawyer, the section also mandates that in such cases, the Legal Services Authority must provide free legal aid through a qualified lawyer.
This ensures that justice is accessible to all, regardless of economic background, and that child victims are represented fairly and sensitively in court.
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Example 1: Family Appoints Their Own Lawyer
A child’s parents choose to hire a private lawyer to represent the child during the trial of a sexual abuse case under POCSO. Section 40 allows them to engage a legal counsel of their choice, subject to the procedural limitations under CrPC Section 301.
Example 2: Legal Aid Provided to a Low-Income Family
In another case, a child’s guardian cannot afford to hire a lawyer. Under Section 40, the Legal Services Authority steps in and assigns a trained legal practitioner to represent the child and assist the family throughout the legal process, free of cost.
Common Questions and Answers on Section 40 POCSO
1. Who can appoint a lawyer for the child under POCSO?
The child’s family or legal guardian can appoint a legal counsel of their choice for any offence under the POCSO Act, in accordance with CrPC Section 301.
2. What happens if the child’s family cannot afford a lawyer?
If the child’s family or guardian is unable to afford legal representation, the Legal Services Authority is obligated to provide a qualified legal practitioner at no cost.
3. Can the lawyer appointed by the family argue the case directly in court?
The appointed lawyer can participate in the proceedings, but their role may be subject to restrictions under Section 301 CrPC, which typically allows only the Public Prosecutor to conduct prosecution unless the court permits otherwise.
4. What is the role of the Legal Services Authority?
The Legal Services Authority provides free legal aid and ensures access to justice for marginalized and economically disadvantaged individuals, including child victims under POCSO.
Conclusion
Section 40 of the POCSO Act ensures that children have the right to legal representation throughout legal proceedings. Whether through private counsel or government-appointed legal aid, this provision guarantees that the child’s voice is heard and protected in court. It forms a crucial part of ensuring justice, protection, and fair treatment for child victims of sexual offences.
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